321 F.3d 1270 (10th Cir. 2003), 02-2025, U.S. v. Scull

Docket Nº:02-2025
Citation:321 F.3d 1270
Party Name:U.S. v. Scull
Case Date:March 11, 2003
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1270

321 F.3d 1270 (10th Cir. 2003)

UNITED STATES of America, Plaintiff-Appellee,

v.

Oscar SCULL, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Gus Bono, Defendant-Appellant.

Nos. 02-2025, 02-2035.

United States Court of Appeals, Tenth Circuit

March 11, 2003

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Dorothy C. Sanchez of Albuquerque, NM, for Defendant-Appellant Scull.

Kirtan K. Khalsa (Paul J. Kennedy with her on the briefs) of Kennedy & Han, P.C., Albuquerque, NM, for Defendant-Appellant Bono.

Laura Fashing, Assistant U.S. Attorney (David Iglesias, United States Attorney), Albuquerque, NM, for Plaintiff-Appellee in both cases.

Before SEYMOUR, HOLLOWAY [*] and ANDERSON, Circuit Judges.

SEYMOUR, Circuit Judge.

Gus Bono and Oscar Scull were found guilty by a jury on a variety of counts relating to manufacturing, possessing, and distributing crack cocaine, and conspiracy to commit the same. See 18 U.S.C. §§ 2, 924(c)(1)(A)(i); 21 U.S.C. §§ 841(a)(1), (b)(1)(B), § 846, §§ 856(a)(1), (b). On appeal, Mr. Bono maintains his case should be remanded for a new trial due to a variety of alleged errors committed by the district court. He contends the court erred by failing to instruct the jury on his entrapment defense, by allowing charges to be brought against him which arose out of alleged outrageous government conduct, by improperly handling Mr. Bono's allegation of juror bias and taint, and by failing to submit to the jury the question of Mr. Bono's prior convictions for sentencing purposes. Mr. Scull argues on appeal that the government did not present sufficient evidence to prove he was guilty of the charges against him. Because Mr. Bono's and Mr. Scull's cases arise out of the same set of facts, we consolidate their appeals for the purposes of this disposition. We affirm. 1

I

While federal agent Bryan Shields was working undercover as part of an illegal drug distribution investigation, he was introduced to Mr. Bono by a confidential informant. Through his contacts with Mr. Bono, Agent Shields entered into five different drug transactions with Mr. Bono, Mr. Scull and Jose Achon over a period of about six weeks. 2 Agent Shields ultimately bought a total of 85.2 grams of crack cocaine from these men. We will recite additional facts when relevant to the arguments on appeal.

A. Entrapment

Mr. Bono first contends the district court erred in concluding the evidence was insufficient to support an entrapment defense and declining to provide the jury with such an instruction. We review the district court's determination de novo, United States v. Ortiz, 804 F.2d 1161, 1164 (10th Cir. 1986).

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The entrapment defense exists to "protect an otherwise unpredisposed defendant from governmental coercion[,] ... rais[ing] the issue of whether the criminal intent originated with the defendant or with government agents." Id. at 1165. A defendant is "entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment." Mathews v. United States, 485 U.S. 58, 62, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). "For the purposes of determining the sufficiency of the evidence to raise the jury issue, the testimony most favorable to the defendant should be accepted." United States v. Reyes, 645 F.2d 285, 287 (5th Cir. 1981); see also Ortiz, 804 F.2d at 1164. The defendant must show, either by presenting his own evidence or by pointing to evidence presented by the government in its case-in-chief, his lack of predisposition to commit the crime and "government involvement and inducement." Ortiz, 804 F.2d. at 1164-65. Because Mr. Bono did not present a defense, we must examine the government's evidence to determine whether sufficient facts existed to support an entrapment instruction.

Our record review persuades us the evidence does not support Mr. Bono's contention that he was induced by the government to engage in illegal drug transactions. "Inducement" is "government conduct which creates a substantial risk that an undisposed person or otherwise law-abiding citizen would commit the offense." Id. at 1165. Government inducement of a defendant can occur through "persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship." Id. (quoting United States v. Burkley, 591 F.2d 903, 913 (D.C. Cir. 1978)). However, "[e]vidence that a government agent solicited, requested or approached the defendant to engage in criminal conduct, standing alone, is insufficient to constitute inducement. Inducement is also not shown by evidence that the government agent initiated the contact with the defendant or proposed the crime." Id. (citation omitted).

When Mr. Bono and Agent Shields were first introduced to each other by the confidential informant, Mr. Bono willingly sold fifty dollars worth of crack cocaine to the agent. Because Agent Shields had expressed interest in buying $500 worth of the drug, Mr. Bono arranged to meet him later that day to sell him the full amount. At trial, Agent Shields testified that during this first transaction, Mr. Bono welcomed Agent Shields as a new customer, and outlined the terms and nature of their sales relationship. He gave Agent Shields his business card and wrote his cell phone number on it, stating it "was the best way to get in touch with him for future transactions." Rec., vol. IV at 103. Mr. Bono warned Agent Shields that he was not to bring anyone else with him when the two met for business, and threatened that if he ever saw someone with Agent Shields during a sales transaction, he would shoot him. He also told Agent Shields if he was ever "harassed or threatened or ripped off or robbed, that [Agent Shields] could come to him, and that he would take care of that." Rec., vol. IV at 105-06. Finally, Mr. Bono asked for Agent Shield's contact information so he could get in touch with him.

Subsequent transactions between Mr. Bono and Agent Shields highlight the lack of government inducement to sell drugs. Agent Shields testified he would contact Mr. Bono to inquire as to another drug sale, they would set up a time to meet, and Mr. Bono would either arrive with a partner, or would send someone to consummate

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the sale with Agent Shields. When Mr. Bono indicated he was going to stop selling drugs for a while, he nonetheless took Agent Shields' number and said he would refer him to his partner. When Agent Shields contacted Mr. Bono a few weeks later, Mr. Bono said Agent Shields "would be happy that he was up and running again," rec., vol. V at 152, and later confirmed he was "back in business all the way." Rec., vol. V at 166.

In an effort to enhance his inducement argument, Mr. Bono asserts on appeal that the confidential informant who initially introduced Agent Shields to Mr. Bono harassed and induced him to sell drugs to the undercover agent. However, Mr. Bono did not present any direct evidence to this effect at trial, nor did the testimony elicited by the defense in its cross examination of government witnesses bring out this evidence. Rather, the record indicates Mr. Bono willingly entered into sales transactions with Agent Shields.

Similarly, Mr. Bono cannot point to evidence proving his lack of predisposition to commit the crimes charged against him. "Predisposition" is defined "as a defendant's inclination to engage in the illegal activity for which he has been charged ... [and] focuses on the defendant's state of mind before government agents suggest that he commit a crime." Ortiz, 804 F.2d at 1165. A defendant's predisposition to commit a particular crime "may be inferred from a defendant's history of involvement in the type of criminal activity for which he has been charged, combined with his ready response to the inducement offer." Id.

As set out above, Mr. Bono welcomed Agent Shields as a new customer and outlined the scope and nature of their sales relationship. When he was unable to immediately sell drugs to Agent Shields, Mr. Bono would arrange to meet the agent later, sometimes sending associates to sell the drugs. Mr. Bono also told Agent Shields he and his partner "made the crack cocaine themselves [and the agent] would get the same quality of crack cocaine" with each sale. Rec., vol. IV at 104. Similarly, when Agent Shields first met Mr. Bono at his auto shop, the agent observed another man enter the shop and saw "Gus Bono hand what appeared ... to be ... five crack rocks to this individual" in exchange for currency. Rec., vol. IV at 98. Government surveillance of Mr. Bono's auto shop also indicated "the traffic or the amount of people that were coming in and out of the business, arriving at the business, walking in, walking right back out and leaving[, was] consistent with drug transactions." Rec., vol. V at 343. This evidence demonstrates Mr. Bono's predisposition to sell drugs. He had established drug business practices, served other drug customers at his auto shop, and indicated he was manufacturing cocaine with his partners. The district court correctly determined the evidence did not warrant an entrapment defense.

B. Outrageous Government Conduct

Mr. Bono also contends the government's continued investigation of him after his first sale of drugs to Agent Shields was solely to increase the charges against him, as well as his sentence. He maintains we should overturn his convictions on the subsequent drug sales he, Mr. Scull and Mr. Achon transacted with Agent Shields because the government's continued investigation amounted to outrageous government conduct and "sentencing entrapment." 3

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