Drug Sentence Upheld Despite Police Tactics

SAN FRANCISCO (CN) - A California man convicted of dealing methamphetamine and cocaine must serve his full sentence despite questionable enforcement tactics, the 9th Circuit ruled.

Anthony Boykin, of Yuba City, was convicted in Federal Court of dealing drugs after being the target of several controlled drug buys by law enforcement over nearly seven months during 2006 and 2007.

Complicating the matter, Boykin is friends with the brother of a detective who investigated the case and who used two informants whose credibility was questionable. One of the informants dealt drugs while also engaging in controlled buys, and another was charged with fraud but still was used after the detective learned she pleaded guilty, according to the 21-page ruling.

Boykin appealed the evidence against him regarding one count of distributing methamphetamine and claimed sentencing manipulation. He also argued his criminal history was overstated and the lower court should have sustained objections to some of the sentencing enhancements.

Regarding Boykin's appeal of the distribution count, U.S. District Judge Barbara Lynn, sitting on the 9th Circuit panel by designation, wrote the trial jury "was instructed on an aiding and abetting theory of liability" and prosecutors did not have to show he had actual possession of the drugs that were sold.

Boykin was present when the controlled buyer arrived to buy methamphetamine, Boykin made calls to the person who sold the drugs around the same time as the transaction, and the police found drug paraphernalia, guns and cash at Boykin's residence afterward, the ruling stated.

Boykin "collaborated on multiple drug transactions, in person and by phone" and "a rational jury" could find he collaborated on the drug transaction that he challenged in his appeal, Lynn wrote for the panel.

For Boykin's appeal based on sentencing manipulation to succeed, he would have to "show 'that officers engaged in the later drug transactions solely to enhance his potential sentence,'" the judge added.

"Boykin fails to demonstrate that the district court's finding were clearly erroneous. The investigation fell just shy of constituting outrageous government conduct," Lynn wrote, adding that the government extended the investigation to build a stronger case against Boykin and not to enhance the potential sentence against him.

"It was reasonable for law enforcement to extend the investigation to build a stronger case with more controlled purchases by a more credible confidential source," Lynn wrote for the panel. "The existence of an ambiguous FBI memo did not require the district court to conclude that the investigators extended the investigation solely to enhance [Boykin's] sentence."

She continued: "The panel found deeply troubling the conduct of the involved law enforcement agencies, but held that the improprieties do not warrant reversal of the district court's denial of a downward departure for sentencing manipulation."

Although Boykin argued the district court overstated his criminal history of vandalism, loud-noise disturbance and disturbing the peace, the panel found the court was right to assess them in determining his sentence for peddling drugs.

The panel also ruled that the sentencing judge did not abuse discretion in finding Boykin's criminal history was stated accurately and rejected his argument that the amount of drugs attributed to him "was unforeseeable."

The lower court also properly added to his sentence due to gun possession since it was not "'clearly improbable'" that it was connected to the offense, the panel held.

"Agents recovered several firearms" from Boykin's residence, including a sawed-off shotgun that had his fingerprints on them, and evidence showed he "engaged in several drug transactions" there, Lynn wrote.

The three-judge panel affirmed the lower court's conviction and sentencing for one count of distribution of methamphetamine and the prior sentence imposed for conviction imposed for distribution of methamphetamine and cocaine and conspiracy to distribute the drugs.

Circuit judges Michael Hawkins and Johnnie Rawlinson joined Lynn on the panel.

Boykin's attorney, Joseph J. Wiseman, was not immediately available for comment.

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