The opinion of the court was delivered by: STANLEY SPORKIN
The defendant, Earl Budd, was convicted by a jury on August 10, 1992, of one count of Unlawful Distribution of Cocaine Base, and two counts of Unlawful Use of a Telephone to Facilitate the Offense of Distribution of Cocaine Base.
The defendant now moves for a Judgement of Acquittal, N.O.V. and or for a dismissal of the indictment. The basis for this motion is that the conduct of the government was so "outrageous", that it violated his constitutional rights. Essentially, the allegations, are that the investigating Police Officer had sex with him, smoked a cocaine laced marijuana cigarette with him, and passed "crack" cocaine across the bar to the bartender at the "Brass Rail", during the course of his investigation.
The Court held a post conviction hearing to determine the validity of the defendant's allegations.
In early 1991, an undercover narcotics operation was begun, which centered around the "Brass Rail", a bar and club located at 5th and K Streets, N.W., in the District of Columbia. The cliental of the "Brass Rail" includes cross-dressers.
The defendant is a 34 year old cross dresser.
Captain Miller, the operations supervisor, testified that he assigned Investigator Gregory Wilson, a "mature" 13 year veteran of the Metropolitan Police Force, to the "Brass Rail" undercover operation in late 1990 or early 1991. He testified that he arranged for a special informant to introduce Wilson to the targets of the undercover operation.
Budd was introduced to Wilson, by the special informant at the "Brass Rail", on March 13, 1991. At that time, Wilson told the defendant that he wanted to purchase some "crack" cocaine so that he could distribute it in another location, namely the Eastern Shore of the Chesapeake Bay. According to the trial testimony, the Defendant told Wilson that he could help him out, whereupon he left the location and returned a few moments later, with 16 bags of a white rocky substance, which he sold to Wilson for $ 300. These bags later tested positive for crack cocaine and had an aggregate weight of 3.219 grams. At trial the jury was unable to reach a decision as to the defendant's culpability in this transaction. However, on the date of the alleged transaction the defendant gave Wilson his telephone number to facilitate future purchases.
On March 20 and 21, 1991 Wilson phoned the defendant and arranged to purchase crack on March 21, at Budd's residence located at 715 Gresham Place, N.W. The Defendant met Wilson at his door wearing a woman's negligee, and sold him 6.59 grams of crack cocaine for $ 350. Captain Miller testified that Wilson was followed to Budd's home, by a fellow undercover Police Officer, who reported that Wilson spent only a short period of time in the premises.
At trial Budd testified that he began a homosexual relationship with Wilson in March, 1991. Budd testified that he and Wilson began "hugging and kissing" on March 21st, but did not become involved in a sexual affair until several days after this visit. Budd testified as follows:
Q: Now, you told the jury that you saw Investigator Wilson at your ...