The U.S. 10th Circuit Court of Appeals, Denver, has reinstated cocaine charges against a Centerville man.
U.S. District Court Chief Judge Bruce S. Jenkins dismissed the charges against M.K. Fadel in July 1987, ruling that there was no dispute in court over Fadel's claim that he was a victim of governmental entrapment. Federal prosecutors failed to show Fadel was predisposed to commit the crimes, he said.After the appeals court reversed Jenkins, U.S. Attorney Brent D. Ward said, "We're pleased that the decision will enable us to present the case to a jury." He said federal prosecutors believed there was sufficient evidence to take the case to a jury.
Last year, as he dismissed the indictment, Jenkins charged that an assistant U.S. attorney handled the case "spasmodically and belatedly."
Fadel was indicted by a grand jury on three charges: conspiracy to possess and distribute cocaine, and two counts of distributing cocaine.
Fadel claimed that in March 1986, he and Kay Sugar became sexually intimate. She was the government's confidential informant, and she asked Fadel to help obtain cocaine she could sell, according to Fadel.
The government attorney said he strongly disputed the statements by Fadel, but he did not specifically address those allegations, the appeals court said.
After calling as witness Charles Hafen, an undercover police officer who helped investigate the case, the government lawyer said he didn't believe it was necessary to call other witnesses. But later the government asked the chance to present the testimony of Sugar, who was present in the courtroom.
Later, Jenkins granted the government's request to reopen the case so Sugar could testify. But at the date set for this hearing, "the government did not produce Ms. Sugar as a witness," the appeals court said.
"The prosecutor stated that he and the investigator did not believe she could be located on such short notice and acknowledged that they had made no attempt to contact Sugar for purposes of the hearing," it says.
Instead, the government tried to call a co-defendant of Fadel's as a witness who could testify about Fadel's predisposition to commit the crimes. The defense objected.
Jenkins refused to let anyone other than Sugar testify and dismissed the case with prejudice.
In reversing Jenkins, the appeals court judges wrote, "Because we hold that the testimony of officer Hafen in and of itself was sufficient to create a factual question on the issue of Fadel's predisposition, and thus required a trial on the merits, we need not address the other issues."
The panel added that whether Fadel was entrapped could be addressed by a jury at the conclusion of the trial.