U.S. v. Davis
| Decision Date | 02 March 1994 |
| Docket Number | Nos. 92-10592,92-10620,s. 92-10592 |
| Citation | 15 F.3d 902 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. William D. DAVIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Curry James WILLIAMS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kevin M. Kelly, Las Vegas, Nevada; Nola M. McGuire, Irvine, California, for the defendants-appellants.
Anthony S. Murry, Assistant United States Attorney, Las Vegas, Nevada, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Nevada.
Before: SNEED, POOLE and TROTT, Circuit Judges.
Appellants William D. Davis and Curry James Williams were convicted on the following charges: (1) conspiring to distribute one-half pound of cocaine base, a Schedule II Controlled Substance under 21 U.S.C. Sec. 812(c), in violation of 21 U.S.C. 846; and (2) distributing one-half pound of cocaine base, in violation of 21 U.S.C. Sec. 841(a)(1). In these consolidated appeals, Davis and Williams challenge the legality of their convictions and sentences on several grounds. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742. We affirm both of their convictions. We vacate their sentences and remand to the district court for resentencing.
Davis and Williams were indicted on December 18, 1991 and charged with the above-described offenses. At their joint trial, which commenced on July 6, 1992, the following evidence was adduced:
In 1991, Richard McConnell, an undercover Drug Enforcement Administration (DEA) agent, instructed Hal Richardson, a longtime paid confidential informant with an extensive criminal history, to arrange a drug transaction in Las Vegas, Nevada involving "crack" cocaine, a very pure cocaine intended for smoking rather than inhalation. Richardson then arranged a crack deal with Williams, whom Richardson stated was selling crack in Las Vegas, to take place on December 5, 1991. The terms of the deal were that Williams would sell McConnell, who was posing as Richardson's friend, one-half pound of crack in exchange for $6,400.00. The sale was to take place near the Stardust Casino in Las Vegas.
When Williams did not arrive at the agreed time, Richardson called him and told him that McConnell was ready to consummate the deal. When Williams still failed to arrive promptly, Richardson called him again and had him speak to McConnell. Williams asked McConnell if he was serious about going through with the deal and if he had the $6,400.00. When McConnell responded affirmatively, Williams agreed to meet with him.
Soon thereafter, Williams met with Richardson and McConnell. Williams asked McConnell for some identification to insure that he was not a police officer. McConnell refused to present any identification but showed Williams that he had the money to purchase the crack. After seeing the money, Williams told McConnell that he did not have the crack with him and that "another guy" would bring it. Williams then made a telephone call and returned, stating that the crack would arrive in a few minutes.
While they were waiting for the crack to arrive, McConnell stated that, according to Richardson, Williams, who resided in Los Angeles, was distributing between one-half and one pound of crack a week in Las Vegas. McConnell then asked Williams if he could supply one-half pound a week, and Williams responded that he could "if the money was right."
Shortly thereafter, Davis drove into the parking lot where the three were waiting. The three walked over to Davis' car, and Williams told Davis to "get the dope out." Davis retrieved an athletic sock and got out of the car. Williams then instructed Davis to make the sale in McConnell's car.
Once in McConnell's car, Davis removed a bag from inside the athletic sock and gave it to McConnell. McConnell examined the contents of the bag and recognized it to be crack. 1 McConnell then stated that he would pay for the crack in Davis' car. When Davis got out of McConnell's car, McConnell signaled to nearby surveillance agents, who came to the scene and arrested Davis and Williams.
Davis and Williams called Richardson, who demanded $200.00 before talking to defense counsel, as their only witness. Richardson testified that McConnell instructed him to arrange a crack deal with "gang bangers," whom he said McConnell described as young African-American males from the Los Angeles area. McConnell denied ever making this statement.
Richardson also testified that, from the first time he met Williams in October 1991, he was "cultivating" Williams for participation in the crack deal and that this cultivation continued each of the times that Williams returned to Las Vegas thereafter. Richardson, who was a noted gambler in Las Vegas, treated both Williams and his wife to various shows, hotels and restaurants. Richardson also purchased clothing for Williams and made it clear that he would be willing to do additional favors for him. During one of Williams' visits to Las Vegas, at Williams' birthday party, Richardson met Davis for the first time and treated both him and Williams to dinner and bought them athletic equipment. Richardson testified that he treated Davis and Williams generously because he wanted them to feel indebted to him.
Richardson raised the subject of a possible crack deal with Williams during some of these occasions. Initially, Williams refused, saying he "did not do that type of thing." The record shows that Williams continued to refuse Richardson until he was asked again on the night of his birthday party to provide crack for a "friend" of Richardson's. There is no record of Richardson's asking Davis to take part in a crack deal.
The government showed during cross-examination that Richardson had a reason to be biased against the government. In addition to his $500.00 fee, one of the reasons that Richardson set up the crack deal leading to Davis' and Williams' arrests was because he hoped that McConnell would testify on his behalf at his upcoming criminal trial. However, McConnell did not testify for Richardson, apparently because Richardson did not complete other crack deals for the DEA. Richardson admitted he was angry at McConnell for not testifying for him.
At the end of trial on July 7, 1992, the jury was instructed regarding, among other things, Davis' and Williams' entrapment defense. On July 8, 1992, the jury returned guilty verdicts against both defendants on both counts. At Davis' and Williams' sentencings, the district court adopted the findings and recommendations contained in their presentence reports and sentenced them to 188 and 240 months imprisonment, respectively.
Davis and Williams now appeal to this court.
Davis and Williams raise the following issues regarding the legality of their convictions:
A. Entrapment
Both Davis and Williams argue that they were entrapped as a matter of law. We review this question of law de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).
There are two elements to the defense of entrapment: (1) government inducement of the crime, and (2) the absence of predisposition on the part of the defendant. United States v. Skarie, 971 F.2d 317, 320 (9th Cir.1992). Where the government has induced an individual to break the law and the defense of entrapment is at issue, the prosecution must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime prior to first being approached by government agents. See Jacobson v. United States, --- U.S. ----, ----, 112 S.Ct. 1535, 1540, 118 L.Ed.2d 174 (1992).
Inducement must be provided by someone acting for the government. 2 United States v. Becerra, 992 F.2d 960, 963 (9th Cir.1993) (citation omitted). Inducement can be any government conduct creating a substantial risk that an otherwise law-abiding citizen would commit an offense, including persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship. See United States v. Garza-Juarez, 992 F.2d 896, 909 (9th Cir.1993) (citations omitted).
In evaluating predisposition, the court reviews five factors: (1) the character and reputation of the defendant; (2) whether the government made the initial suggestion of criminal activity; (3) whether the defendant engaged in the activity for profit; (4) whether the defendant showed any reluctance; and (5) the nature of the government's inducement. Becerra, 992 F.2d at 963 (citation omitted). Although none of these five factors controls, the most important is the defendant's reluctance to engage in criminal activity. Id.
Generally, "the issue of whether a defendant has been entrapped is for the jury as part of its function of determining the guilt or innocence of the accused." Sherman v. United States, 356 U.S. 369, 377, 78 S.Ct. 819, 823, 2 L.Ed.2d 848 (1958); see also Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988); United States v. Smith, 802 F.2d 1119, 1124 (9th Cir.1986); United States v. Griffin, 434 F.2d 978, 981 (9th Cir.1970), cert. denied, 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160 (1971). It is inappropriate for an appellate court to determine whether a defendant was entrapped when such a determination would necessarily entail "choosing between conflicting witnesses" and "judging credibility." See Sherman, 356 U.S. at 373, 78 S.Ct. at 821. Therefore, we should not disturb the jury's finding unless, viewing the evidence in the light most favorable to the government, no reasonable jury could have concluded that the defendants were predisposed to commit the charged offenses. See United States v. Hart, 963 F.2d 1278, 1283 (9th Cir.1992). In short, to justify an acquittal based on entrapment as a matter of law, there...
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