United States v. Harold Kessee

Kessee was convicted of conspiracy, possession with intent to distribute, and carrying a firearm during a narcotics transaction in connection with sales of cocaine base. 18 U.S.C. § 924 (c)(1); 21 U.S.C. §§ 841 (a)(1) and 846. We reverse, because he was entitled to present his entrapment defense to the jury, and was prevented from doing so.

Kessee participated in sales of cocaine base to an undercover informant, Mohammed Bawa, on September 6 and 12, 1990. He made the introductions, effected the arrangements on the telephone, and carried a pistol in connection with these activities. Bawa received the cocaine base from and paid the money to Kessee’s codefendant, Marlon “Boo” Mack, who gave Kessee a commission. After Kessee had arranged for the third sale, he was arrested.

I. Motion to Suppress.

Kessee filed a motion to suppress statements he had made after arrest. His motion was denied because it was filed after the trial had begun. We review a denial of relief under Federal Rule of Criminal Procedure 12(f) for abuse of discretion. See United States v. Gonzales, 749 F.2d 1329, 1336 (9th Cir.1984).

Jury selection took place on December 11. The trial court invited counsel to make…