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United States v. Vincent

July 27, 2010

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE,
v.
CLARENCE EUGENE VINCENT, DEFENDANT - APPELLANT.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH (D. Ct. No. 2:08-CR-00252-TS-1).

The opinion of the court was delivered by: Tacha, Circuit Judge

PUBLISH

Before TACHA, EBEL, and HARTZ, Circuit Judges.

Clarence Eugene Vincent was found guilty by a jury of two counts of knowingly distributing methamphetamine in violation of 21 U.S.C. § 841(a)(1). On appeal, Mr. Vincent argues that the district court erred by refusing to instruct the jury on the defense of entrapment. He also contends that the district court improperly denied his motion requesting disclosure of the government's confidential informant ("CI"). We take jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

I. BACKGROUND

In late 2007, the Federal Bureau of Investigation ("FBI") began investigating Matt Izenberg, a purported white supremacist leader and methamphetamine trafficker who was a suspect in two homicides. Special Agent Greg Rogers, the lead investigator, sought to purchase methamphetamine from Mr. Izenberg in order to establish a criminal case against him. He was able to arrange a meeting with Mr. Izenberg with the help of a CI.

On January 10, 2008, Agent Rogers, acting under cover, and an individual named Ryan Arthur met with Mr. Izenberg to purchase drugs. The meeting did not go well and ended with Agent Rogers ordering Mr. Izenberg out of his truck. After the failed drug purchase, Agent Rogers determined that he could more effectively infiltrate Mr. Izenberg's methamphetamine business by recruiting additional confidential sources. The CI suggested that Mr. Vincent could be such a confidential source because of his connections with Mr. Izenberg. Furthermore, the CI believed he could get Mr. Vincent to sell drugs to Agent Rogers, who could, in turn, use that criminal act to persuade Mr. Vincent to cooperate in his investigation. This strategy of using the threat of prosecution to get a person to cooperate as an informant is commonly employed by the FBI.

Several days before Agent Rogers's failed drug purchase from Mr. Izenberg, Mr. Vincent was contacted by his good friend Mr. Arthur. Mr. Arthur indicated he was looking to be introduced to Mr. Izenberg, and Mr. Vincent was able to arrange a meeting between the two. On January 10 (the date of Agent Rogers's failed drug purchase), Mr. Arthur contacted Mr. Vincent and explained that he had arranged an unsuccessful drug deal between Mr. Izenberg and a buyer, and that Mr. Izenberg had damaged his reputation with the buyer. At this time, however, he did not ask Mr. Vincent to find him any methamphetamine. Instead, he suggested that Mr. Vincent and his girlfriend join him on a trip to Mesquite, Nevada and he offered to pay for transportation, food, lodging, and gambling.

After roughly a week in Mesquite, Mr. Arthur drove Mr. Vincent and his girlfriend back to their home in Salt Lake City, Utah. During the return trip, Mr. Arthur again mentioned the failed drug deal. This time, however, Mr. Arthur asked Mr. Vincent if he would do him a favor. He explained that Agent Rogers was his friend's brother and how Mr. Izenberg had damaged his reputation with Agent Rogers. He then asked Mr. Vincent if he would get him some methamphetamine in order to repair his reputation. Mr. Vincent agreed.

Mr. Vincent ultimately sold Agent Rogers methamphetamine on two occasions. On February 13, 2008, Agent Rogers met Mr. Vincent in the parking lot of a Kentucky Fried Chicken and purchased 11.9 grams of methamphetamine. Then, on March 5, 2008, Mr. Vincent sold Agent Rogers 20.4 grams of methamphetamine in a night club parking lot.

On April 15, 2008, FBI agents visited Mr. Vincent's home and spoke with him about his drug dealing activities. Mr. Vincent admitted that he sold drugs to an individual named Greg Rogers, but denied any other sales. Agent Rogers then entered the home, identified himself as an FBI agent, and asked for Mr. Vincent's assistance. Mr. Vincent agreed to help in the investigation of Mr. Izenberg, but was arrested after he began revealing Agent Rogers's identity as an undercover agent. Mr. Vincent was subsequently charged with two counts of distributing methamphetamine.

Before trial, Mr. Vincent filed motions seeking disclosure of the identities of the government's CI and requesting a jury instruction on the defense of entrapment. The district court denied both motions. Mr. Vincent then renewed his motions at trial and the court again denied both. The jury ultimately returned guilty verdicts on both counts, and Mr. Vincent was sentenced to 120 months' imprisonment to be followed by 96 months of supervised release. Mr. Vincent now appeals, contending that the district court erred in denying his motions.

II. DISCUSSION

A. Entrapment ...


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