UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-40109
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KARL GAYWIN ACLESE,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(1:94-CR-81-2)
_________________________________________________________________
(October 17, 1995)
Before JOLLY, JONES and STEWART, Circuit Judges.
PER CURIAM:*
Karl Gaywin Aclese appeals his conviction and sentence
for conspiracy to possess with intent to distribute cocaine base.
This court affirms.
I. BACKGROUND
Aclese was arrested when the Drug Enforcement Agency
"supervised" his purchase of cocaine base from Roger Johnson.
Johnson had previously been stopped and arrested while driving from
*
Local Rule 47.5 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-settled
principles of law imposes needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined that this opinion
should not be published.
Houston to Port Arthur, Texas, for possessing 7 1/2 ounces of
cocaine base. Johnson admitted that 5 ounces of the cocaine
belonged to him and stated that Aclese had paid him $1200 to
purchase the remaining 2 1/2 ounces. Johnson agreed to cooperate
with the DEA to complete the delivery of the cocaine to Aclese.
Johnson telephoned Aclese and arranged to meet him in a
mall parking lot in Port Arthur. There, Johnson handed Aclese a
plastic bag containing 2 1/2 ounces of cocaine base. Aclese
accepted it without comment or paying any money. DEA agents
arrested Aclese immediately after the transaction.
The jury found Aclese guilty of conspiracy to possess
with intent to distribute cocaine base in violation of 21 U.S.C. §
846. The district court sentenced him to 151 months in prison and
five years supervised release.
Aclese timely appeals his conviction and sentence. He
argues that a) the district court erred in excluding his post-
arrest statement; b) the district court erred in denying his motion
to dismiss for outrageous governmental conduct; and c) the district
court erred in calculating his base offense level under the U.S.
Sentencing Guidelines.
II. DISCUSSION
A. Post-Arrest Statement
The district court did not abuse its discretion by not
granting Aclese an exception to the hearsay rule in excluding
Detective Cartwright's testimony that Aclese told him he had met
Johnson in the parking lot to buy car stereo speakers. See U.S. v.
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Williams, 993 F.2d 451, 457 (5th Cir. 1993); FED. R. EV. 801(c).
Federal Rule of Evidence 803(24) provides that such hearsay may
only be admitted under certain exceptional circumstances:
A statement not specifically covered by any of
the foregoing exceptions but having equivalent
circumstantial guarantees of trustworthiness,
[is not excluded by the hearsay rule even
though the declarant is available to testify]
if the court determines that (A) the statement
is offered as evidence of a material fact; (B)
the statement is more probative on the point
for which it is offered than any other
evidence which the proponent can procure
through reasonable efforts; and (C) the
general purposes of these rules and the
interests of justice will best be served by
admission of the statement into evidence.
FED. R. EV. 803(24); U.S. v. Cain, 587 F.2d 678, 681-82 (5th Cir.
1979), cert. denied, 440 U.S. 975 (1979) (Rule 803(24) exceptions
rarely granted).
Aclese does not satisfy Rule 803(24)'s requirements.
First, he offers no proof that his post-arrest statement is
truthworthy. That his statement was made sometime after his arrest
does not demonstrate its truthfulness. Second, although the
statement may be material to Aclese's defense, it is not more
probative than any other evidence; Aclese received plastic
packages of cocaine base "cookies", which he could not have
confused with the stereo speakers he later claimed to be buying.
Third, admitting the post-arrest statement contravenes the purpose
of the hearsay rules and would not further the interests of
justice. Aclese admits that his purpose in having Detective
Cartwright testify is to avoid being cross-examined himself, and
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Aclese was still able to present his stereo speaker theory to the
jury.
Also, the government did not "open the door of
admissibility" to Aclese's post-arrest statement by failing to
object to references and testimony regarding Aclese's previous
stereo purchases. The evidence introduced at trial regarding these
purchases was not a partial recitation of Aclese's statement that
he met Johnson to buy speakers. See Barshop v. U.S., 191 F.2d 286,
292 (5th Cir. 1951), cert. denied, 342 U.S. 920 (1952).
Further, the exclusion of Aclese's post-arrest statement
could not have affected the jury verdict. The jury could not have
reasonably concluded that Aclese mistook a two ounce plastic bag of
cocaine for car stereo speakers.
B. Governmental Misconduct
The district court did not err in denying Aclese's motion
to dismiss because the government's "outrageous conduct" deprived
him of due process. See U.S. v. Evans, 941 F.2d 267, 270 (5th Cir.
1991), cert. denied, 502 U.S. 972 (1991). Aclese cannot assert
this defense because he actively participated in the cocaine
transaction. See id. at 271.
Also, the "totality of the circumstances" does not
indicate that the government engaged in outrageous conduct. See
id. at 270-71. Aclese's contention that the government wrongfully
searched Johnson's car does not support a finding that the
government over-involved itself in obtaining Aclese's conviction.
See id. at 271 (defining outrageous governmental conduct as
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"governmental over-involvement in the charged crime [and] a passive
role by the defendant"). Aclese's argument regarding Johnson's
plea bargain "deal" is speculative. Aclese does not demonstrate
that Johnson agreed to any arrangement other than the one about
which he testified. Aclese's contentions regarding sentence
manipulation involve governmental conduct after his conviction.
Finally, the government did not engage in a "reverse sting"
operation. The DEA did not supply the cocaine to Johnson and
Aclese; they had previously planned its purchase and delivery.
U.S. v. Robins, 978 F.2d 881, 883 (5th Cir. 1993).
C. Sentencing
The district court did not err in attributing 7 1/2
ounces of cocaine to Aclese in calculating his sentencing base
offense level. See U.S. v. Maseratti, 1 F.3d 330, 340 (5th Cir.
1993), cert. denied, Zamora v. U.S., __ U.S. __, 114 S.Ct. 1096
(1994) (district court's factual sentencing findings for drug
offenses reviewed for plain error). The U.S. Sentencing Guidelines
provide that defendants in jointly undertaken criminal activity are
accountable for all reasonably foreseeable quantities of contraband
within the scope of their activity. U.S.S.G. § 1B1.3(a)(1)(B) &
comment 2. In the instant case, Aclese was convicted of conspiring
with Johnson, and Johnson testified that he and Aclese agreed to
pool their money to purchase the 7 1/2 ounces of cocaine.
Also, the district court did not err in concluding that
the government did not engage in sentencing entrapment by
manipulating the quantity and price of the cocaine delivered. The
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evidence established that Aclese and Johnson had previously
determined its amount and price.
Further, Aclese's argument that the government
manipulated his base offense level by attempting to include
evidence about his other offense and a firearm owned by him, is
without merit. The district court excluded this evidence and
determined Aclese's base offense level by the amount of cocaine
possessed by Johnson at the initial traffic stop.
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
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