United States v. Tommy Charles Fountain, Jr.

776 F.2d 878, 1985 U.S. App. LEXIS 24973
CourtCourt of Appeals for the Tenth Circuit
DecidedOctober 30, 1985
Docket83-2110
StatusPublished
Cited by32 cases

This text of 776 F.2d 878 (United States v. Tommy Charles Fountain, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth 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. Tommy Charles Fountain, Jr., 776 F.2d 878, 1985 U.S. App. LEXIS 24973 (10th Cir. 1985).

Opinions

BARRETT, Circuit Judge.

Tommy Lee Fountain (Fountain), appeals his conviction following trial to the court based on stipulated facts and documents, of knowing, intentional and unlawful conspiracy with some six named co-conspirators and others unknown, to distribute and for distributing tablets of Dilaudid, a Schedule II narcotic controlled substance, in violation of 21 U.S.C. § 841(a)(1). The crux of the charge was that commencing November 18, 1978, and continuing to about February 5, 1981, fraudulent, forged prescriptions for quantities of Dilaudid were filled and distributed by Fountain, a licensed pharmacist, employed by Heritage Park Pharmacy of Midwest City, Oklahoma, located near the City of Tulsa. The Dilaudid tablets were thereafter sold at substantial sums. The trial court, at sentencing, observed that Dilaudid is “[o]ne of the most powerful and addicting and destructive of the drugs that are abused, and who knows better about that than a pharmacist.” (R., Vol. V, p. 6.)

On appeal, Fountain contends that the district court erred in denying his pre-trial motion to suppress his confession on the grounds “[Tjhat the defendant was promised by Jim Willis and Jim Puckett that they would and could obtain immunity for the defendant and that the defendant was subjectively under the expectation of immunity when his statements were given, based on the promises ... the promises of immunity did overbear the defendant’s will to resist and brought about a confession which was not freely self-determined.” (R., Vol. I, pp. 6, 7.) Fountain contends that his confession and all fruits thereof should have been suppressed because' his confession was involuntarily given. In the alternative, he argues that because he fully cooperated with the Government in the drug investigation that the immunity agreement he allegedly struck with the Government should be enforced. In response, the Government contends that Fountain was not granted or promised immunity or, if an implied promise was found to have been made by the Government, Fountain violated it by failing to cooperate with the Government fully.

A recital of relevant facts in the record will be made keeping in mind that in reviewing a denial of a motion to suppress, the trial court’s finding of fact must be accepted by this court unless clearly erroneous. United States v. Recalde, 761 F.2d 1448, 1457 (10th Cir.1985); United States v. Pappas, 735 F.2d 1232, 1233 (10th Cir.1984) (also holding that at a hearing on motion to suppress, credibility of witnesses and weight to be given evidence together with inferences, deductions and conclusions to be drawn from evidence, are to be determined by the trial judge); United States v. Cooper, 733 F.2d 1360, 1364 (10th Cir.1984) (credibility determinations are for the finder of fact, that is, the trial judge); United States v. Obregon, 748 F.2d 1371, 1376 (10th Cir.1984) (the evidence must be viewed in the light most favorable to the district court’s finding); United States v. Gabriel, 715 F.2d 1447, 1450 (10th Cir.1983); United States v. Axselle, 604 F.2d 1330, 1335 (10th Cir.1979) (where a motion to suppress is heard, the credibility of the witnesses, the weight to be given the evidence, and the drawing of inferences are for the trial judge).

In 1981, the Oklahoma State Bureau of Narcotics and Dangerous Drugs (OSBNDD) commenced an audit of Fountain’s pharmacy following receipt of information that large quantities of Dilaudid were leaving the pharmacy. The primary investigative agent was Agent James Thomas Puckett (Puckett), assisted by [880]*880Agents James Willis and Charles Wright. Fountain was aware of the investigation. Fountain, a registered, licensed pharmacist, obtained his degree following five years of college. The evidence adduced at the pretrial evidentiary hearing on the motion to suppress Fountain’s confession documented'by his handwritten statement and a subsequent typewritten statement involved the testimony of Fountain and his girlfriend, Ms. Gail Bryner and Government witnesses Agent Puckett and Agent James Ford, a polygraph expert. The court, following the hearing, entered its order denying Fountain’s motion to suppress. The evidence presented at the hearing, supplemented by the stipulated facts, revealed, inter-alia, that:

Agents Jim Willis and Jim Puckett served with the Oklahoma State Bureau of Narcotics and Dangerous Drugs (OSBNDD); in 1981 Agent Puckett conducted an audit of Fountain’s pharmacy because of information that a large amount of dilaudid was leaving the pharmacy; Fountain asked to meet with the agents; a meeting was arranged and Fountain stated to the agents that he could provide information relative to criminal activities concerning drugs but that he would require a grant of immunity from prosecution in return; Agent Puckett advised Fountain that immunity could only be granted by the United States Attorney; Fountain terminated the meeting without making any incriminating statements;
A second meeting was held at Fountain’s request and again Fountain inquired about immunity from prosecution; once again Agent Puckett advised Fountain that only the United States Attorney could grant him immunity and if so the condition would be his full cooperation with the Government; the second meeting concluded without Fountain having made any incriminating statements;
A third meeting was initiated by Fountain; Agent Puckett, upon inquiry from Fountain, related that it would be reasonable for a defendant to anticipate the grant of immunity from prosecution if he fully cooperated with the Government’s investigation; but he could not grant immunity;
A fourth meeting was held, at Fountain’s request, at OSBNDD headquarters with Agent Puckett and other agents; Fountain did not make any inquiry about immunity from prosecution, but Fountain did, prior to making any statements, obtain full advisements and sign a form entitled “Statement of Rights and Waiver” containing full Miranda advisements, including acknowledgment that no promises or threats had been made to him and no pressure of any kind used against him; Fountain then wrote out a “Voluntary Statement” witnessed by Agents Puckett and Willis, detailing the unlawful distribution of controlled substances involving himself and those he associated with;
Shortly thereafter, Fountain traveled from Tulsa to Oklahoma City where he executed a typewritten version of handwritten statement, which, when corrected, was executed by Fountain on a form entitled “Voluntary Statement”;
Thereafter, OSBNDD agents requested that Fountain travel to Oklahoma City from Tulsa to submit to a polygraph examination; Fountain did so; the polygraph examiner (Agent Ford) was unable to obtain conclusive results because, in the opinion of the examiner, Fountain had purposefully manipulated his movements and breathing in an effort to defeat the test and had likely taken some drugs to achieve this result; the agents requested that Fountain return for a further polygraph examination in Oklahoma City by the same examiner, but Fountain refused to do so;
There were no further contacts or communications- between OSBNDD agents and Fountain; the agents were of the view that Fountain was uncooperative in the investigation.

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Cite This Page — Counsel Stack

Bluebook (online)
776 F.2d 878, 1985 U.S. App. LEXIS 24973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tommy-charles-fountain-jr-ca10-1985.