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Jerry Allen My case is a marijuana case that is called a "reverse sting." No marijuana or money every exchanged hands. I was on no tapes, no telephone conversations and the Federal agents at my trial said that had not heard of me or talked to me.
I know this all sounds crazy and I ask myself everyday, how did I get into prison? Everyone that reads my case asks the same thing. The asking has gone on for over three years now. I received a 5 year sentence.
The Federal government was trying to sell marijuana. They called my co-defendant, Bobby Branham, as many as seven times in one day, to sell, trade, whatever they could do to make a deal. They started out saying that they would not sell less that 200 pounds. Then they came down to 100 pounds and then 50 pounds, but none was ever bought . This went on for over 6 months.
One of the government's paid confidential informants by the name of Chuck Cordle said at my trial that he'd worked for the government for 7 years and was in it for the money. At my trial he admitted that he paid no income taxes on the money. He also told the judge and jury that he had never seen or heard of me.
My co-defendant said that I knew nothing about a marijuana deal and when I found out a so-called deal might be taking place, I wanted no part of it and tried to leave.
The US Attorney told the Court that the government thought I was going to buy some marijuana. What right does law enforcement have to try to sell marijuana in the first place? And to someone who isn't a dealer - is this right? They knew that we bought and sold used cars and I had a little money. Now I have nothing. Are they using these marijuana scams to steal and rob people all over this country?
I smoked marijuana but I did not deal in it. I made good money legally. What the Federal government is doing is wrong. They are stealing and robbing and lying to people so that they can take their property.
The following are portions of Facts from an appeal documents
On July 7, 1994, Jerry Lee Allen went to Lexington, Kentucky, from his home in Mt. Sterling, Kentucky, for the purpose of attending the auto auction. He had nearly $45,000.00 with him at the time. He was to meet his friend Bobby Branham, a Mt. Sterling automobile dealer who was to accompany Allen to the auction. The two were to meet at Jerry's Restaurant, just across Interstate 75 from the auto auction.
Unbeknownst to Allen, Branham had set up a proposed drug deal to come down at that location. Allen, who had brought money to buy cars, pulled into the parking lot at Jerry's near to the appointed time. There he observed Bobby Branham and an unidentified person (from whom he thought he would be buying automobiles). That unidentified person was actually Detective Van Spencer of the Lexington Police Department who was conducting a reverse sting. Spencer approached Allen's vehicle along with Branham and at one point asked Allen if he had brought the money.
Thinking that Spencer was referring to money for cars, Allen acknowledged that he had brought half. Shortly thereafter, Jerry Allen became suspicious of what was going on. Finally, Branham confided in Allen and informed him of the proposed drug deal. Allen, wanting no part of any such deal, tried to leave the premises but was arrested by Spencer and his associates before he could get away. Mr. Allen's vehicle and money were seized by the government.
STATEMENT OF THE CASE
Defendant Jerry Lee Allen, (hereinafter "Allen"), was arrested and subsequently indicted on charges of aiding and abetting the purchase of a schedule 1 controlled substance, and conspiracy to possess such a substance. R. 14, Indictment as to Defendant (2). Testimony by the arresting officer before the jury revealed that Defendant Allen had no part of the negotiations prior to the alleged attempt to purchase marijuana, and that Mr. Alien only appeared on the scene moments before the actual arrest took place. Detective Van Spencer, TR. 252, pp. 16-17. Van Spencer also stated that there was no conversation relating to any drug deal between Mr. Allen and anyone else, including himself. Van Spencer, TR. 252, p. 57.
A DEA agent who was part of the arrangement to induce the defendants to purchase the controlled substance also testified that Mr. Allen showed up at the Jerry's Restaurant, where the meeting regarding the prospective purchase was taking place, only a short time before the arrests, and that he had never seen or heard of Mr. Allen prior to that time.
Stephen Koerner, TR 265, pp. 13, 19, 24. DEA Agent Koerner further testified that no mention of drugs or the purchase of any controlled substance was made to or by Mr. Allen at any time. Stephen Koerner, TR 265, Id.
Co-Defendant Bobby Gene Branham took the stand during the trial and stated that, on the day of the arrests, he had told Mr. Allen that they were going to the car auction to buy vehicles and had asked him to bring half the money and to meet him at Jerry's Restaurant. Bobby Gene Branham, TR 251, pp. 21-22, 54. Defendant Branham also stated that when Mr. Allen was first told about the prospective drug purchase at the scene of the arrests, and just moments prior to the arrests, Mr. Allen immediately tried to leave the vicinity. Bobby Gene Branham, TR 251, p.23.
All versions of the event support the facts placed before the Court by counsel for Defendant Allen, which were that Mr. Allen worked as a transmission mechanic and car dealer and that he frequently attended car actions with Bobby Gene Branham and often met Branham at the same Jerry's Restaurant prior to attending the car auction.
III. THE INFORMANT WAS PAID A CONTINGENCY FEE, BASED UPON THE ASSETS SEIZED. SUCH AN AGREEMENT SHOULD BE FOUND IMPROPER.
STANDARD OF REVIEW: The Court of Appeals must determine whether the trial court ensured that adequate safeguards were in place to protect the due process rights of a defendant where an informant is promised a contingent fee. United States v. Cervantes-Pacheco. 826 F2d 310 (5th Cir. 1987).
The informant in this case, Charles Cordle, stated under oath that he has been an informant for over seven years, and that he is in this field "for the money." Charles Cordle, TR 250, p. 5. He admitted that he can make a lot as an informant, but that he does not report the money the government pays him on his income tax. Charles Cordle, TR. 250, p. 6. He further admitted that he has his expenses paid by the government, and in addition, receives a contingent fee equal to ten to twenty percent (10-20%) of the assets seized. Charles Cordle, TR. 250, p. 7. Detective Van Spencer testified that the government paid Informant Cordle's expenses, and a "finders fee" of $300 for finding co-defendant Branham, (Van Spencer, TR. 253, p. 24), and then agreed to give him twenty percent (20%) of the approximately $75,000.00 in assets recovered. Van Spencer, TR. 253, p. 25.
A motion to dismiss was made by defense counsel based upon this testimony regarding the contingency fee. TR. 253, p. 25. This motion was denied by the Court. Id.
Where, as here, an informant is paid a contingency fee, the court is required to ensure adequate safeguards against abuses. The trial court must also carefully instruct the jury about the suspect credibility of such a compensated witness, who has such a strong motivation to lie. United States v. Pruneda Gonzalez. 953 F2d 190, t97 (5th Cir. 1992).
Such safeguards were not in place in the present case, and the jury did not understand the import of the contingency fee arrangement.
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