U.S. v. Wolffs, 78-5216

• Decision Date: 26 April 1979
• Docket Number: No. 78-5216,78-5216
• Citation: 594 F.2d 77
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael A. WOLFFS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 77

594 F.2d 77

UNITED STATES of America, Plaintiff-Appellee, v. Michael A. WOLFFS, Defendant-Appellant.

No. 78-5216.

United States Court of Appeals, Fifth Circuit.

April 26, 1979.

James J. Macie, Atlanta, Ga., for defendant-appellant.

D. L. Rampey, Jr., U. S. Atty., Edgar W. Ennis, Jr., Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before GOLDBERG, SIMPSON and CLARK, Circuit Judges.

SIMPSON, Circuit Judge:

Defendant Michael A. Wolffs was convicted of one count of conspiring to possess with intent to distribute marijuana and conspiring to distribute marijuana in violation of 21 U.S.C. § 846, and two counts of using a communication facility (a telephone) in committing a felony in violation of 21 U.S.C. § 843(b). For the reasons stated hereinafter we reverse and remand for a new trial.

I. STATEMENT OF FACTS

On December 14, 1977, Douglas A. Pugh, a member of the United States Army assigned to Fort Benning, Georgia, attended a party. Someone at this party told Pugh that Michael Wolffs, the defendant, was "running dope" and recently had received a large quantity of marijuana. Pugh was acquainted with Wolffs because in 1976 he had purchased an automobile from Wolffs, then employed as an automobile salesman at Barrington Ford, located in Columbus, Georgia. After attending the party Pugh conveyed this "tip" to Jimmy Griffin, a detective with the Muscogee County Sheriff's Department. Pugh did so because he had volunteered to serve as a confidential informer after having been arrested by Detective Griffin for drug-related offenses. Thereafter Pugh was instructed by Griffin to initiate a meeting with Wolffs for the purpose of discussing a purchase of a large quantity of marijuana.

On the afternoon of December 15, 1977, Pugh visited Wolffs at the Ford dealership to ask for assistance in locating a source of marijuana. Pugh testified that Wolffs immediately volunteered to arrange a meeting for Pugh with an Army captain who could supply the twenty-five pounds of marijuana Pugh wanted to purchase. Wolffs testified that he did not Immediately offer to arrange this meeting, that he only consented to arranging a purchase through the husband of a fellow employee after Pugh had made several requests over a period of four days, and that he helped Pugh because Pugh said his wife was pregnant and he was without sufficient funds for Christmas gifts. Pugh denied having mentioned his wife's pregnancy.

Pugh reported the information obtained during his conversation with Wolffs to Detective Griffin and Michael Johnson, a narcotics investigator for the United States Army Criminal Investigation Division ("CID"). Subsequently, Wolffs arranged a meeting between Pugh and Noel Paul Eason, the fellow employee's husband. This meeting took place on the evening of December 19, 1977, in a Columbus, Georgia restaurant. In attendance were Wolffs, Eason, Pugh, and CID Investigator Johnson, who was posing as a prospective marijuana purchaser. This led to a transaction in Newnan, Georgia on December 22, 1977, where Noel Paul Eason and three others, ¹ later indicted as co-conspirators, exchanged twenty-four pounds of marijuana for $8,250.00. Once the transaction was consummated, CID Investigators Johnson and Lee, who had acted as buyers, disarmed and detained two of the conspirators until personnel of the sheriff's departments arrived, handcuffed the suspects, and transported them to jail. Personnel of the Muscogee and Coweta Counties Sheriff's Departments, who had been conducting surveillance of the sale, arrested the other co-conspirators in the immediate vicinity of the transaction. Wolffs, not present, was arrested later.

Prior to trial defendant moved to suppress the marijuana and purchase money seized as well as the testimony of various individuals. ² Defendant asserted that this evidence and testimony should be suppressed because obtained in violation of the Posse Comitatus Act, 18 U.S.C. § 1385 (1976), and applicable Army regulations. After a hearing on this motion, the district court denied the motion to suppress. The alleged co-conspirators, with the exception of Wolffs, thereafter changed their pleas from not guilty to guilty. The charges against defendant Wolffs proceeded to trial, where the jury returned guilty verdicts on all three counts charged.

II. ENTRAPMENT

Defendant's initial contention is that the district court committed reversible error in instructing the jury on the defense of entrapment. Defendant asserts that the charge given did not properly assign to the government the burden of proving defendant's predisposition to commit the offenses charged beyond a reasonable doubt. In response, the government maintains that an entrapment instruction was not even required since defendant's own testimony demonstrated that in facilitating a marijuana transaction his motivation was the opportunity for self-aggrandizement (i. e. defendant's cooperation would generate goodwill and lead to future automobile sales). Alternatively, the government argues that even if there was sufficient evidence to charge the jury on the affirmative defense of entrapment, the instruction given correctly stated the law and in no way prejudiced substantial rights of defendant.

A. Raising the Defense

"Entrapment occurs 'when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.' " United States v. Buckley, 586 F.2d 498, 501 (5th Cir. 1978), cert. denied, --- U.S. ----, 99 S.Ct. 1792, 60 L.Ed.2d 242 (1979), Quoting Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 213, 77 L.Ed. 413 (1932). See generally Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976) (defense of entrapment not available where defendant concedes a predisposition to commit the crime in question); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) (no entrapment as a matter of constitutional or statutory law where government agent provided defendant with essential and difficult-to-obtain ingredient for manufacture of methamphetamine); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958) (entrapment established as a matter of law where government informer made repeated requests of defendant to obtain narcotics, and defendant capitulated, after initial refusals, only when informer resorted to sympathy).

Where the defense of entrapment is at issue the court's analysis is bifurcated, dealing with two factual questions.

(I)n such cases two questions of fact arise: (1) did the agent induce the accused to commit the offense charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offense. On the first question the accused has the burden; on the second the prosecution has it.

United States v. Benavidez, 558 F.2d 308, 310 (5th Cir. 1977), Quoting United States v. Sherman, 200 F.2d 880, 882-83 (2d Cir. 1952) (Hand, J.). Accord Pierce v. United States, 414 F.2d 163, 166 (5th Cir.), Cert. denied, 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 425 (1969).

In order to raise the defense of entrapment the defendant has the Production burden the initial burden of going forward with evidence of governmental involvement and inducement. United States v. Buckley, 586 F.2d at 501; United States v. Groessel, 440 F.2d 602 (5th Cir.), Cert. denied,403 U.S. 933, 91 S.Ct. 2263, 29 L.Ed.2d 713 (1971). The ultimate burden of proof, however, the risk of nonpersuasion, is always on the government. United States v. Tate, 554 F.2d 1341, 1344 (5th Cir. 1977).

The sufficiency of defendant's evidence of governmental involvement is a question of law for the court in the first instance, not for the jury. United States v. Tate, 554 F.2d at 1344. Once the defendant has sustained this burden, however, the issue of entrapment is a question of fact for the jury. Buckley; Groessel.

To satisfy the production burden, defendant must adduce Some evidence, more than a scintilla, which tends to show government inducement and lack of predisposition to commit the offenses charged. Buckley, 586 F.2d at 501; United States v. Timberlake, 559 F.2d 1375, 1379 (5th Cir. 1977); Benavidez, 558 F.2d at 310. In determining whether this burden has been satisfied, we must accept the testimony most favorable to the defendant. Buckley, 586 F.2d at 501; Benavidez, 558 F.2d at 309. Even evidence presented in the prosecution's case may go toward satisfaction of defendant's production burden. Benavidez, 558 F.2d at 310, citing Notaro v. United States, 363 F.2d 169, 174 & n. 6 (9th Cir. 1966). Accepting the testimony most favorable to defendant, we conclude there was sufficient evidence to submit the entrapment question to the jury.

The testimony most favorable to defendant showed that: Wolffs previously was never involved in the sale of marijuana; Pugh initiated contact with Wolffs for the purpose of arranging a sale of marijuana at the direction of Detective Griffin; Wolffs only complied with Pugh's requests to help him find a source for marijuana after Pugh made several requests over four days; Wolffs lent Pugh assistance out of human kindness, Pugh having told Wolffs that he needed money because he was on leave from the Army with a pregnant wife and without any money for Christmas gifts; there was no previous dealing or meetings between Wolffs and Eason, the source, prior to the December 19th meeting at the Columbus restaurant; and, Wolffs met Eason through Eason's wife who, in the course of a Chance conversation on December 17th, told Wolffs that her husband was a marijuana supplier.

The government emphasizes that defendant's own testimony indicates that he decided to help Pugh because assistance might lead...