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United States v. Payne

December 11, 1996




Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.

No. 95 CR 7

Before POSNER, Chief Judge, KANNE and EVANS, Circuit Judges.

KANNE, Circuit Judge.

David F. Hamilton, Judge.

ARGUED MAY 22, 1996


A jury convicted Terrance L. Payne of cocaine distribution charges. Payne's motions for a new trial and for a judgment of acquittal because of insufficient evidence were denied.

Payne appeals his conviction on the grounds that the district court abused its discretion by denying his motion for a new trial and his motion for judgment of acquittal. Payne alleges the following: 1) that the testimonial evidence supporting his conviction was perjured; 2) that the government failed to disclose important information to Payne as required under Brady; 3) that he was precluded from calling a witness who would have effectively impeached the testimony of a key prosecution witness; and 4) that the testimony of the government's key witnesses should have been stricken thus rendering the governments evidence insufficient to prove he was guilty beyond a reasonable doubt. *fn1 After considering each of Payne's claims, we affirm the convictions.

I. History

Terrance Payne's convictions stem from an arrest that occurred when Payne and Demarco Thacker attempted to sell a kilogram of cocaine to Sergeant James T. Jones of the Marion County (Indiana) Police Department. Sergeant Jones used confidential informant James Lee to set up the cocaine sale between Payne, Thacker, and Jones. This sale was to take place in the parking lot of a Steak 'n Shake restaurant in Indianapolis.

At the time of this drug deal, Thacker and Payne both resided in Evansville, Indiana. On January 9, 1995, Thacker and Payne drove a rental car from Evansville to Indianapolis in order to meet with Lee and complete the cocaine sale. While in route to Indianapolis, Thacker telephoned Lee and instructed Lee that he and Payne would be in the city shortly. Lee then called Officer Jones to inform him that Thacker and Payne were on their way. Thacker and Payne drove to Lee's residence, where they picked him up and proceeded to the Steak 'n Shake restaurant to meet with Officer Jones. When they arrived at the Steak 'n Shake parking lot, Payne remained in driver's seat of the rental car while Thacker and Lee joined Officer Jones and another undercover agent in their car. At this time, Jones signaled other law enforcement officers to arrest Thacker and Payne. A subsequent search of the car revealed a kilogram of cocaine secreted inside an Audiovox telephone box that was located in the trunk of the rental car.

In connection with this attempted drug sale, Payne was charged with conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine in violation of 21 U.S.C. secs. 846 and 841(a)(1). Payne did not testify at his trial. Payne's counsel, however, argued that Payne was not aware that Thacker intended to participate in a cocaine sale while in Indianapolis. Furthermore, Payne's counsel argued that Payne took no part in the cocaine sale and that he was merely a victim who happened to be in the wrong place at the wrong time.

Prior to Payne's trial, Thacker agreed to testify against Payne pursuant to a limited use immunity agreement and a plea agreement. These agreements required that Thacker divulge all information to the government regarding his past criminal activity in exchange for a downward departure from the sentence to be imposed for his criminal conviction. At trial, Thacker provided testimony that Payne had, in fact, participated in the attempted cocaine sale to the undercover agents.

Confidential informant Lee had been working with Officer Jones pursuant to a plea agreement from a prior cocaine possession charge. Lee's plea agreement required that he set up cocaine buys for Officer Jones in exchange for a downward departure in his sentence calculation.

In addition to setting up the cocaine transaction between Officer Jones, Thacker and Payne, Lee testified as a government witness in Payne's trial. Lee was compensated for his participation in the investigation, as well as for the testimony he provided at Payne's trial. Lee, like Thacker, testified that Payne knowingly participated in the attempted cocaine sale. Furthermore, Lee testified to his previous ...

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