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Summary of Opinion

Factual and Procedural Background

Donald Henthorn and Tom Riley were convicted of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. In 1984 Henthorn moved to the lower Rio Grande Valley to start a business smuggling electronic goods into Mexico. Henthorn hired Harold Larsen, a former pilot, who arranged meetings with Juan Cabrera in Mexico. Larsen became suspicious after overhearing references to cargo far larger than legitimate electronic shipments and contacted the DEA. Larsen cooperated with DEA Agent Michael Harper, at first recording phone calls and later assisting in a reverse-sting operation in which Harper posed as a seller of cocaine. Henthorn identified Riley as a buyer. A meeting in a Harlingen motel led to the sale of five kilos (restructured from a proposed twenty-kilo deal) and the defendants' arrest. The government prosecuted the case twice: the first trial resulted in a hung jury; the second trial resulted in convictions of Henthorn, Riley, and a codefendant (Kenneth Hooper). This appeal followed, challenging several evidentiary and procedural rulings.

Legal Issues Presented

  1. Whether the government's use of Harold Larsen as a paid informant violated Henthorn's Fifth Amendment due process rights (challenge to payment arrangement and alleged pretargeting).
  2. Whether the district court erred in admitting extrinsic-offense evidence against Riley under Fed.R.Evid. 403 and 404(b), and whether that admission required severance as to Henthorn under Fed.R.Crim.P. 14.
  3. Whether the district court impermissibly limited defense voir dire regarding two prospective jurors and thereby prejudiced Riley's rights.

Arguments of the Parties

Donald Henthorn's Arguments

  • Contended that the government's use of Larsen as a paid informer violated due process because the promised $25,000 payment was an impermissible contingent fee arrangement that called Larsen's truthfulness into question.
  • Moved for a severance under Rule 14 after the district court admitted extrinsic-offense testimony against Riley, arguing that the extrinsic evidence would not have been admissible against Henthorn in a separate trial and unfairly prejudiced Henthorn.

Tom Riley's Arguments

  • Argued that the district court erred in admitting extrinsic-offense evidence (Ferris Ashley's testimony) because its unfair prejudice substantially outweighed its probative value under Fed.R.Evid. 403 and it was being used solely to show bad character in violation of Fed.R.Evid. 404(b).
  • Contended that the district court impermissibly limited defense voir dire by not allowing a question about whether two prospective jurors had served on "dry" conspiracy cases, and that denying the question prejudiced his right to an impartial jury.

Note: The opinion does not set out a detailed, adversarial presentation of the government's trial arguments in isolation; rather, the court's discussion focuses on the defendants' contentions and the court's analysis.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Williamson v. United States, 311 F.2d 441 Proscribes certain contingent fee arrangements by informants that can call informant truthfulness into question. Court recognized the Williamson proscription but held it applies only where the government directs an informant to implicate government-pretargeted specific defendants; found Williamson did not apply here because there was no pretargeting and Larsen's payment arrangement did not undermine his credibility.
United States v. Yater, 756 F.2d 1058, 1067 Clarifies that Williamson applies only to cases in which the government directs the informant to implicate pretargeted specific defendants. Used to limit Williamson's scope and to support conclusion that Henthorn was not pretargeted.
United States v. Cervantes-Pacheco, 800 F.2d 452 (rehearing en banc granted) Noted as addressing the nature of the proscription on contingent fee arrangements. Cited as indicating the issue will be considered en banc; no substantive change in this case's analysis was derived from it.
United States v. Lane, 693 F.2d 385, 388 Addresses when government conduct in sting operations violates fundamental fairness. Cited for the proposition that Agent Harper's conduct did not rise to the level of egregiousness or fundamental unfairness that would require overturning the convictions.
United States v. Beechum, 582 F.2d 898, 911 (en banc) Sets the two-step standard for admission of extrinsic-offense evidence: (1) relevance to an issue other than character (e.g., intent), and (2) probative value not substantially outweighed by prejudice. Court applied the Beechum test, finding Ashley's testimony relevant to Riley's intent and that probative value outweighed undue prejudice.
United States v. Gordon, 780 F.2d 1165, 1174 Holds that, in conspiracy cases, a not guilty plea sufficiently raises intent as an issue to justify admissibility of extrinsic-offense evidence. Used to justify the admissibility of extrinsic-offense evidence against Riley because a not guilty plea was entered and intent was contested.
United States v. Roberts, 619 F.2d 379, 383 Supports that conspiracy cases differ in application of extrinsic-offense evidence rules and intent may be at issue without active contest. Cited to reinforce the Gordon proposition that intent is sufficiently at issue in conspiracy prosecutions.
United States v. Williams, 809 F.2d 1072, 1084 States that denials of Rule 14 (severance) motions are reviewed only for abuse of discretion and require demonstration of compelling prejudice. Applied to review Henthorn's Rule 14 severance motion and to conclude there was no abuse of discretion because Henthorn did not demonstrate compelling prejudice.
United States v. Rhodes, 569 F.2d 384, 390 Addresses severance and prejudice standards relevant to joinder of defendants. Cited to support the conclusion that the trial judge did not abuse discretion in denying severance; Ashley's testimony did not implicate Henthorn and the judge limited its use.
United States v. Montelongo, 507 F.2d 639, 641 Discusses the necessity of allowing counsel opportunity to develop venire members' prior narcotics jury service when many panel members had such service. Distinguished on facts: Montelongo involved many venire members with prior service; here only two venire members served previously and defense counsel had information about them, so Montelongo did not control.
United States v. Birdsell, 775 F.2d 645, 652 Affirms broad trial-court discretion in the conduct of voir dire and that reversal requires abuse of discretion plus prejudice. Applied to uphold the district court's denial of the proposed voir dire question because Riley did not show prejudice or abuse of discretion.

Court's Reasoning and Analysis

The court structured its analysis by addressing each challenged ruling in turn.

I. Informant / Due Process

  • The court examined Henthorn's claim that Larsen's promised $25,000 constituted an impermissible contingent-fee arrangement under Williamson. The court stated that Williamson proscribes contingent fee arrangements only when the government directs an informant to implicate government-pretargeted specific defendants, citing Yater for that limitation.
  • On the facts, the court found no pretargeting: Larsen voluntarily reported suspicions, the DEA initiated an investigation based on Larsen's information and Henthorn's connections, and Larsen had not been directed to procure evidence against preselected defendants.
  • The payment arrangement did not undermine Larsen's credibility in the court's view: prior to the first trial Larsen had only received $500 for expenses and did not expect additional payment; Agent Harper recommended the $25,000 after the arrest; $13,000 was later paid after the first trial (which resulted in a hung jury). Larsen's testimony was consistent between trials. The court concluded this did not constitute an impermissible payment for testimony.
  • The court also addressed entrapment: it noted that a reverse-sting operation was used but that the entrapment defense was presented to and rejected by the jury; the court found no government conduct rising to fundamental unfairness (citing Lane).

II. Extrinsic Offenses and Severance

  • The court applied the Beechum two-part test to the district judge's admission of Ferris Ashley's testimony about Riley's prior cocaine dealings: (1) relevance to an issue other than character (intent) and (2) probative value outweighing unfair prejudice.
  • The court found Ashley's testimony admissible as relevant to Riley's intent because the prior offenses were similar (large cocaine deals) and temporally proximate, establishing an identity of significant state of mind.
  • On balancing probative value against prejudice, the court emphasized the government's need for the evidence in a conspiracy case, noting that a not guilty plea raises intent as an issue (citing Gordon and Roberts). The trial judge's limiting instructions and care in instructing the jury reduced the danger of prejudice.
  • Regarding Henthorn's Rule 14 severance motion, the court applied the abuse-of-discretion standard for denials of severance (Williams). The court found no compelling prejudice: cross-examination showed Ashley did not even know Henthorn, the judge limited the testimony's use to Riley's intent, and the case involved only two defendants; thus denial of severance was not an abuse of discretion (citing Rhodes).

III. Voir Dire

  • The court considered Riley's claim that the district court improperly limited defense questioning of two venire members who had prior jury service in narcotics cases. The court distinguished Montelongo—where many panel members had prior narcotics service and counsel had no opportunity to explore that service—from the present case where only two jurors had prior service and defense counsel already knew the extent (single prior service) of that service.
  • Noting the broad discretion afforded to trial judges in conducting voir dire (citing Birdsell), the court found no abuse of discretion and no showing that Riley had been prejudiced (the record did not show whether peremptory challenges were used against those jurors and Riley did not demonstrate how the proposed question would have revealed further bias).

Holding and Implications

HOLDING: The court affirmed the convictions. AFFIRM.

Implications:

  • The court concluded there was no Fifth Amendment due process violation from the government's use of Larsen as an informant under the facts presented (no pretargeting; payment arrangement did not render testimony untrustworthy).
  • The trial court did not abuse its discretion in admitting extrinsic-offense evidence against Riley under Beechum, and did not err in denying Henthorn's Rule 14 severance motion given the limited prejudice and limiting instructions.
  • The district court did not abuse its discretion in limiting the proposed voir dire question and Riley failed to show prejudice from that limitation.
  • The decision affirms the convictions and, as rendered, does not announce a new legal rule beyond its application of existing precedent to the facts; the opinion does not purport to establish a new, broader constitutional standard.

This summary is based exclusively on the language and holdings contained in the provided opinion of the United States Court of Appeals for the Fifth Circuit in No. 86-2278 (Apr. 14, 1987).

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE v. DONALD GENE HENTHORN AND TOM D. RILEY, DEFENDANTS-APPELLANTS.

GEE, Circuit Judge:

Donald Henthorn and Tom Riley appeal their convictions for conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. Our review reveals no reversible error and we accordingly affirm.

I. The Facts

In 1984 Donald Henthorn moved to the lower Rio Grande Valley in Texas to start up a business of smuggling electronic goods into Mexico. Henthorn, an experienced pilot, had served for many years in the CIA-operated Air America in Southeast Asia. He hired Harold Larsen, a former Air America pilot with experience in the electronics smuggling business, to help set up the business and to get the required certificates and permits from the FAA. Larsen also knew people in Mexico who had access to landing strips and arranged a meeting between his new employer and Juan Cabrera, an importer of illegal electronic goods. The first meeting occurred in Veracruz when Larsen flew down there with Henthorn and three of Henthorn's associates: Ivan Barandyka, Bill Lawrence, and appellant Tom Riley. On this trip, Larsen overheard Cabrera and Barandyka discussing cargo worth $2.2 million, a figure far above the $60,000 to $80,000 value of a customary load of electronic goods. Suspicious of his employer, Larsen called the Drug Enforcement Administration (DEA) office upon his return to Texas. He was, however, unable to speak with any agent at that time.

This type of business is legal in the United States, but illegal in Mexico. After dark, planes laden with electronic goods clear United States Customs and travel to private airstrips inside of Mexico. Once they land, they unload their cargo and leave as fast as possible because of the danger from both Mexican police and hijackers.

A month later Larsen, Henthorn, and Lawrence returned to Veracruz to visit Cabrera. Larsen waited in Veracruz while the others flew to Aruba, an island off the coast of Venezuela. When the others failed to return in ten days, Larsen flew to Texas and again called the DEA. He spoke with Agent Michael Harper about his suspicions and Harper initiated an investigation of Henthorn. Several weeks later Larsen notified Agent Harper that he had delivered $50,000 in cash to an aircraft engine repair facility for Henthorn and that Henthorn had revealed that he was no longer working for Barandyka. Harper then asked Larsen to record all his phone conversations with Henthorn.

For the next two months, Larsen assisted in the investigation and kept in daily contact with Agent Harper. Harper instructed Larsen to use drug terms whenever talking with Henthorn. This surveillance failed to reveal any specific drug deals, so Agent Harper decided to conduct a reverse sting operation. He posed as a seller of 45 kilos of cocaine and had Larsen introduce him to Henthorn. Henthorn agreed to arrange a buyer for the drugs. Following the ritual courting between unknowns in the drug world, Henthorn enlisted Larsen's aid in checking out Harper's (known to Henthorn as Mike Harris) credentials.

After Larsen corroborated the DEA Agent's story, Henthorn told Harper that he had a buyer for the cocaine, and that the buyer was Tom Riley. The final transaction occurred in a motel room in Harlingen, Texas. There, Henthorn and Harper met with Riley in Riley's room. Although the deal was supposed to involve 20 kilos, Riley said he had only $90,000 and would have to purchase the rest at a later date. Harper agreed to a restructured deal in which he would sell five kilos for the $90,000, and Henthorn assured him that he could arrange another buyer for the remainder of the cocaine. After counting the money, the men met with Kenneth Hooper, the man who was to test the cocaine. DEA Agents then arrested all three men. The government prosecuted this case twice: the first trial resulted in a hung jury; the second secured the convictions of Henthorn, Riley, and Hooper.

Kenneth Hooper was a codefendant at trial, but his appeal was dismissed for want of prosecution.

II. The Informant

Henthorn contends that the government's use of Larsen as a paid informer violated his due process rights guaranteed by the fifth amendment. He paints the government's promise of a $25,000 payment as an impermissible contingent fee arrangement. The law proscribes certain contingent fee arrangements that by themselves call into question the truthfulness of an informant's testimony. See Williamson v. United States, 311 F.2d 441 (5th Cir. 1962). We have noted, however, that the Williamson holding applies only to "cases in which the government directs the informant to implicate government-pretargeted specific defendants." United States v. Yater, 756 F.2d 1058, 1067 (5th Cir.), cert. denied, ___ U.S. ___, 106 S.Ct. 225, 88 L.Ed.2d 226 (1985). Henthorn's due process argument fails because the DEA neither pretargeted Henthorn nor did they pay Larsen in an impermissible manner.

The nature of this proscription will be considered by this Court en banc in another case. See United States v. Cervantes-Pacheco, 800 F.2d 452 (5th Cir. 1986) (rehearing en banc granted).

The facts belie Henthorn's argument that the government pretargeted him. Agent Harper at no time asked an informant to get the goods on Henthorn in exchange for money. The informant in this case had never worked in that capacity with the DEA before. Larsen talked to the DEA voluntarily about his suspicions of Henthorn. The DEA decided to investigate based on Larsen's suspicions and Henthorn's connections with Barandyka. They enlisted Larsen's help in the investigation and promised him money only for expenses. The facts do not indicate that Henthorn was pretargeted.

Larsen testified that he had received $150 two years earlier from the DEA as a consultation fee relating to electronic goods smuggling operations.

In addition, the fee arrangement used here does not call into question the veracity of Larsen's testimony. Larsen became aware of his compensation only after the first trial had resulted in a hung jury. Until that time, Larsen had received only $500 for expenses. He testified that he did not expect any additional compensation. He cooperated voluntarily with no expectation of reward. After the arrest, Agent Harper had recommended to his superiors a $25,000 reward based on the overall value of Larsen's cooperation. They paid Larsen $13,000 after the first trial but held up on the rest because of a shortage of agency funds. Although Larsen still had not received the additional $12,000 at the time of the second trial, this does not describe an impermissible payment for testimony. Larsen's testimony in the second trial did not differ from his previous testimony. Agent Harper recommended the entire $25,000 after the arrest. The government paid the $13,000 after a trial that resulted in a hung jury — hardly a favorable result for the government. In these circumstances we cannot say that the government's actions in this case were "essentially revolting to an ordered society." Williamson, 311 F.2d at 445 (Brown, J., concurring specially).

Harper did conduct a reverse-sting operation with Larsen's aid. This does not mean that the government pretargeted Henthorn under the Williamson analysis. It raises only the issue of entrapment — an issue that Henthorn's defense counsel ably presented to the jury. The jury, however, rejected the entrapment defense. We will not disturb their decision. Harper's actions did not rise to the level of egregiousness that violates the doctrine of fundamental fairness. See United States v. Lane, 693 F.2d 385, 388 (5th Cir. 1982). We therefore hold that Larsen's cooperation did not violate the appellant's due process rights.

III. Extrinsic Offenses

At the second trial, the government wanted to introduce evidence of extrinsic offenses committed by Tom Riley. They offered two witnesses to prove these offenses: a police officer and Ferris Ashley. The trial judge conducted a hearing outside the presence of the jury to decide the admissibility of the proposed evidence. He permitted Ashley's testimony, but not the police officer's testimony. Appellant Riley argues that the district court erred in allowing this testimony because its unfair prejudice substantially outweighed its probative value (Fed.R.Evid. 403) and that it was used only to prove the bad character of the defendant (Fed.R.Evid. 404(b)). We uphold the district court's ruling.

Ferris Ashley testified to several occasions the previous year when both he and Tom Riley were involved in cocaine transactions in California. Ashley testified from personal knowledge and admitted that he was a paid government informer. The jury could easily accept his testimony as proof that the offenses occurred. The district judge reviewed the proposed evidence under the proper standard: he determined first that the extrinsic offense evidence was relevant to Riley's intent rather than only to his bad character, and second that its probative value outweighed its undue prejudice. See United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). Ashley's testimony of Riley's involvement in cocaine deals was relevant to Riley's intent in the case. The similarity of the extrinsic offenses to the charged offense, all deals involving large amounts of cocaine, and the temporal proximity of the offenses strengthens the relevancy of Ashley's testimony. See id. at 915. The evidence establishes an identity of the significant state of mind and is therefore relevant to Riley's intent to commit the charged offense.

The second step of the analysis weighs the probity of the evidence against its unfair prejudice. Part of this analysis hinges upon the government's need for the testimony to prove intent. Id. at 914. Riley contends that his intent was never at issue and therefore the government did not have the requisite need for extrinsic offense evidence. We have decided, however, that in conspiracy cases, "the mere entry of a not guilty plea sufficiently raises the issue of intent to justify the admissibility of extrinsic offense evidence." United States v. Gordon, 780 F.2d 1165, 1174 (5th Cir. 1986); see also United States v. Roberts, 619 F.2d 379, 383 (5th Cir. 1980) ("Because of the unique nature of conspiracy charges, we cannot apply to them the policy suggested in Beechum of uniformly excluding extrinsic offense evidence when the defendant does not actively contest intent."). In addition to pleading not guilty, Riley attacked the credibility of two of the three government witnesses who testified against him. In this situation, the government was entitled to produce evidence of the extrinsic offenses to prove that Riley had the requisite intent to commit the crime.

The trial judge further minimized the possibility of prejudice by carefully instructing the jury on the use of Ashley's testimony both before Ashley testified and at the end of the trial. See Gordon, 780 F.2d at 1174. The probative value of such evidence outweighed any danger of unfair prejudice to Riley and the trial court therefore did not abuse its discretion in admitting the evidence.

After the district court's decision to admit Ashley's testimony, Henthorn moved for a severance under Rule 14 of the Federal Rules of Criminal Procedure. Henthorn asserts that the court erred in denying his motion because the extrinsic offense evidence would not have been admissible against him in a separate trial and that it unfairly prejudiced his right to a fair trial. Denials of Rule 14 motions are reviewable only for an abuse of discretion, and the appellant must demonstrate compelling prejudice against which the trial court was unable to afford protection. United States v. Williams, 809 F.2d 1072, 1084 (5th Cir. 1987). In this case, Henthorn's cross-examination of Ashley revealed that Ashley did not even know Henthorn. Moreover, the judge instructed the jury that Ashley's testimony was probative only on the issue of Riley's intent. This case was relatively straightforward, with only two defendants; and the extrinsic offense evidence did not implicate Henthorn. The trial judge did not abuse his discretion in denying Henthorn's motion for a severance. See United States v. Rhodes, 569 F.2d 384, 390 (5th Cir. 1978).

IV. Voir Dire

Appellant Riley also contends that the district court impermissibly limited defense inquiry during voir dire with respect to two prospective jurors. The court's questioning revealed that these two jurors had previously served in cocaine cases in which the juries had reached verdicts. The defense counsel wanted to ask if they had served in "dry" conspiracy cases. The judge did not permit the additional questions. The defense then challenged the two venire members for cause and the district court denied the challenge. The two prospective jurors were struck, although the record does not indicate whether they fell to the government's or the defendant's peremptory challenges. Riley relies on a case in which we found that

the district court erred in denying the motions to quash the jury panel without allowing counsel for the defendants any opportunity to develop the nature and extent of the prior jury service of the twenty-seven members of the panel who had had prior jury service in narcotics cases.

United States v. Montelongo, 507 F.2d 639, 641 (5th Cir. 1975). That situation, however, differs greatly than the situation in this case. Here, only two venire members had served in narcotics cases, and defense counsel knew that both of the prospective jurors had only served once before in a cocaine case. Riley's counsel knew more about the prospective jurors than did Montelongo's counsel. In addition, the trial judge has broad discretion in the conduct of voir dire and absent an abuse of discretion and a showing that Riley's rights have been prejudiced thereby, we will not disturb the scope and content of the voir dire. United States v. Birdsell, 775 F.2d 645, 652 (5th Cir. 1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1979, 90 L.Ed.2d 662 (1986). Riley has not shown that he had to use or even did use peremptory challenges to strike those two jurors, therefore allowing a biased juror on the jury. Furthermore, Riley does not demonstrate how the answer to his proposed question would have aided in his search to discover potential prejudice. Riley has not demonstrated that his rights have been prejudiced. The judge did not abuse his discretion in denying Riley's voir dire question.

V. Conclusion

We find no reversible error in any of the appellants' arguments and therefore we AFFIRM.

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U.S. v. HENTHORN
(Apr 14, 1987)