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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v AMIRA SAMI SALEM, Defendant-Appellant.

UNPUBLISHED January 12, 2001

No. 205746 Macomb Circuit Court LC No. 95-001195-FH

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v BETTINA SCHRECK, Defendant-Appellant. No. 206323 Macomb Circuit Court LC No. 95-001194-fh

Before: White, P.J., and Doctoroff and O'Connell, JJ. PER CURIAM. Following a joint trial before a single jury, both defendants were convicted of delivery of 225 grams or more but less than 650 grams of a controlled substance (heroin), MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii), and conspiracy to deliver 225 grams or more but less than 650 grams of a controlled substance (heroin), MCL 750.157a; MSA 28.354(1). The trial court sentenced each defendant to consecutive terms of twenty to thirty years' imprisonment. This Court consolidated defendants' appeals. Both defendants appeal as of right, challenging the trial court's denial of their motions to dismiss on the ground of entrapment, among other things. We remand for a new entrapment hearing, at which the defense will be permitted to confront and cross-examine the informant known as Joe Issa.

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Schreck argues that her rights of confrontation, compulsory process and due process were denied by the trial court's ruling at the entrapment hearing that the true identity of the police informant, known to defendants as Joe Issa, would not be revealed to the defense.1 Schreck argues that the trial court clearly erred in upholding the informer's privilege as to Issa.2 Schreck argues that Issa actively participated in the underlying drug transactions, that he was not a mere supplier of information to the police, and that under those circumstances his identity was not privileged. We agree. The entrapment hearing was held on January 8 and 9, 1997; April 8 and 9, 1997; April 29 and 30, 1997; and May 6, 7 and 9, 1997. At the entrapment hearing, the prosecutor claimed the informant's privilege in response to defendants' attempt to obtain the real identity, address, and testimony of Joe Issa. On April 30, 1997, the trial court held an in-camera examination of Issa and sealed the transcript. The trial court concluded that Issa's testimony would not be helpful to defendants and that Issa would not be produced. A Michigan courts use the objective test of entrapment, which focuses on the government's conduct that resulted in the charges against the defendant, rather than on the defendant's predisposition to commit the crime. People v Hampton, 237 Mich App 143, 156; 603 NW2d 270 (1999). The central question is whether the actions of the police were so reprehensible under the circumstances that the court should refuse, as a matter of public policy, to permit the conviction to stand. Id. Entrapment occurs when (1) the police engage in impermissible conduct that would induce a person situated similarly to the defendant and otherwise law abiding to commit the crime, or (2) the police engage in conduct so reprehensible that it cannot be tolerated by the court. Id. Under the first prong of the entrapment test, the trial court should look at the following factors: (1) whether there existed any appeals to the defendant's sympathy as a friend; (2) whether the defendant had been known to commit the crime with which he was charged; (3) whether there were any long time lapses between the investigation and the arrest; (4) whether there existed any inducements that would make the commission of a crime unusually attractive to a hypothetical law-abiding Salem's appellate brief sets forth the facts pertinent to this claim, although it does not specifically argue this ground for overturning the trial court's denial of her motion to dismiss on entrapment grounds. However, Salem's trial counsel, who represented both defendants at the entrapment hearing, actively objected below to Issa's not being produced, and this Court can consider this question as to Salem because it implicates constitutional rights. Schreck has neglected to address the trial court's refusal to hold an in camera hearing concerning the alleged informant, "Omar." Failure to brief an issue on appeal results in its waiver. People v Kean, 204 Mich App 533, 536; 516 NW2d 128 (1994).
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citizen; (5) whether there were offers of excessive consideration or other enticement; (6) whether there was a guarantee that the acts alleged as crimes were not illegal; (7) whether, and to what extent, any government pressure existed; (8) whether there existed sexual favors; (9) whether there were any threats of arrest; (10) whether there existed any government procedures that tended to escalate the criminal culpability of the defendant; (11) whether there was police control over any informant; and (12) whether the investigation is targeted. [People v James Williams, 196 Mich App 656, 662-663; 493 NW2d 507 (1992), citing People v Juillet, 439 Mich 34, 56-57; 475 NW2d 786 (1991).] Entrapment exists under the second prong of the entrapment test if the police conduct is so reprehensible that the court cannot tolerate the conduct and will bar prosecution on the basis of the conduct alone. People v Fabiano, 192 Mich App 523, 531-532; 482 NW2d 467 (1992). B Defendant Salem testified at the entrapment hearing that she was forty years old, was employed at Maslin Industry, a subsidiary of Ford Motor Company, before being incarcerated, had a college degree in sociology from the University of Lebanon and was working on an MBA from Wayne State University. Both defendants testified that they met a man they knew as Joe Issa in connection with Issa's hiring Schreck to do a painting job for him. Defendants testified that the three became friends and that Issa came to their Royal Oak house frequently. Defendants testified that Schreck, a German citizen who had been in the United States since about 1992, used drugs and had accumulated large debts to several local drug dealers. They testified that they were being threatened because the debts were not paid. Defendants testified that Issa was aware of these problems and that he got Schreck re-addicted to heroin, a habit which she had kicked several years earlier, by inducing her to sample and sell an ounce of heroin for him for $6,000, holding out the prospect of defendants being able to pay against Schreck's drug debt. Salem testified that several months later, around December 1994, Issa introduced her to a man named Jim Hurley, told her that Hurley was a big supplier who could pay cash for drugs, and that Issa kept asking her to make a big drug deal with Hurley. She testified that Issa took advantage of the situation that we had a problem because Ms. Schreck was a user, and she bought some drugs from some people in Detroit and hasn't paid the bill. She was extensively on drugs. They were threatening to kill us, and they knew where we lived. Joe Essa [sic] knew all of this, and he took advantage of the situation and came to us and kept calling me and asking me if I wanted to make a deal so I can pay my debts instead of being dead. When asked how Issa introduced her to Hurley, Salem responded: He just told me I have somebody that can buy drugs to get you out of the situation that you were in because I was expressing my fear to him that the people that Bettina took drugs from because of her addiction are calling our house and -3-

threatening us, if we don't pay the money we are going to get killed. I was working and making money but I wasn't making enough money to pay her drug bills. *** Q Did you ever talk to Joe Essa [sic] about his connection with John [sic Jim] Hurley? A I talked about his connection with John [sic Jim] Hurley and he told me he was in prison before and he did five years on a drug charge. I don't know if that's true. About ten years ago he was in prison and he met a big drug dealer who is the boss of John [sic Jim] Hurley, and he's going to be dealing with John [sic Jim] Hurley because he trusted him because he talked to his boss already and he gave him the okay to deal with him. Q That's what Essa [sic] told you? A That's what he said. Q Okay. Salem testified that she and Issa met Hurley at a restaurant, and Hurley and Issa said they wanted ten kilos of cocaine and two kilos of heroin to start. Salem testified that Hurley said to her if she did not trust him, he would show her the money, and that the three of them drove in Hurley's car to the bank, where Hurley showed her a big drawer of money. Salem testified that I really was thinking about it before I wanted to do it. He wouldn't give me a chance. He [Issa] kept calling me, paging me, calling me at work, on my cellular phone, on my pager. I finally contacted my people and made a deal with them. And we decided to fly to New York and

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