716 F.2d 796 (11th Cir. 1983), 82-5336, United States v. Parr

Docket Nº:82-5336.
Citation:716 F.2d 796
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Richard Colby PARR and Vincent Rendaro, Defendants-Appellants.
Case Date:September 19, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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716 F.2d 796 (11th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,

v.

Richard Colby PARR and Vincent Rendaro, Defendants-Appellants.

No. 82-5336.

United States Court of Appeals, Eleventh Circuit

September 19, 1983

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Mark P. Bryan, Federal Public Defender, Tampa, Fla. (Court-appointed), for Richard Colby Parr.

James B. Murphy, Jr., Raymond T. Elligett, Jr., Shackleford, Farrior, Stallings & Evans, P.A. (Court-appointed), Tampa, Fla., for Vincent Rendaro.

Lynn H. Cole, Asst. U.S. Atty., Tampa, Fla., John E. Steele, Asst. U.S. Atty., Jacksonville, Fla., for plaintiff-appellee.

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

Before RONEY and KRAVITCH, Circuit Judges, and TUTTLE, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

Vincent Rendaro and Richard Colby Parr appeal their convictions for violation of substantive counterfeiting statutes and conspiracy to violate the same, 18 U.S.C. Secs. 371, 471, 473, 2 (Parr and Rendaro), 472 (Parr only) and 474 (Rendaro only). 1 Each was convicted on three counts of the indictment.

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All three convictions of Appellant Rendaro are affirmed. As to Parr, conviction on one count is reversed, the other two affirmed.

Factual Scenerio

On October 9, 1981 a confidential informant turned over to two Special Agents of the United States Secret Service a counterfeit ten dollar Federal Reserve Note. Special Agent Mike McMillan was thereafter assigned to investigate, in an undercover capacity, the source of the note. On October 15 McMillan, wearing a concealed tape recorder and using an assumed name, went

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with the informant to the Starlight Lounge ("the Lounge") in Tampa, Florida. There the informant introduced McMillan to Appellant Rendaro, the manager of the Lounge. The tape recording of this and other meetings in the course of the next week, and the testimony of McMillan, supply evidence that Rendaro had given the note to the informant, Rendaro having received it from Richard Parr. McMillan represented himself as desirous of purchasing counterfeit money. Rendaro agreed to use his efforts to contact "the printer," Rich Parr, and encourage him to produce more counterfeit. McMillan and Rendaro met once more on the 15th, again on the 16th, and engaged in several telephone conversations between the 16th and the 21st. In these conversations Rendaro conveyed varying degrees of optimism or pessimism that Parr would print the money. On October 21, McMillan telephoned Rendaro and learned that $107,000 worth of the money had been printed. Both Rendaro and McMillan expressed surprise that the money had been printed at that time. McMillan then traveled to the Lounge where Rendaro gave him a sample ten dollar bill. 2 Rendaro and McMillan agreed on the price of $20,000 for the bills and planned for McMillan to call Rendaro later that day to discuss final arrangements.

Soon thereafter McMillan observed Parr drive up to the Starlight Lounge in a van, go into the Lounge, come out with Rendaro, sit in the front of the van, and look at something in the back of the van. A few hours later McMillan again called Rendaro. Rendaro said, in part, "Man, I saw that shit they are selling. Three big bundles of it.... 10:00, he'll be right here with it. I saw it this afternoon. Right after you left, he came by and showed me.... There is no problem though. We'll just exchange it all and get it done. [McMillan responded: "All right"]. In fact, whenever you are, uh, whenever things go well for you, you can get ahold of me and we can always hit it again."

Unbeknownst to Rendaro at this time, in the early morning hours of October 19 the Tampa Fire Department had responded to a fire at the residence of Richard Parr. After the fire in a laundry room adjacent to the kitchen of Parr's residence was extinguished, the fire fighters engaged in a procedure identified as "Salvage and Overhaul," a phase in which the fire fighters look for spot fires to insure all are extinguished, for information revealing the identity of the owner and for salvagable valuables in order to protect them from vandals. During this phase, Fire Fighter Stone went into the kitchen of the house, took down an opaque sugar bowl from a shelf above the sink, looked into the uncovered container and inside observed currency, namely sixteen ten dollar bills. He took the bowl and the currency, intending to salvage it as a valuable, and turned it over to Fire Inspector Burke. While counting the money for his own inventory, the inspector noticed all the bills had the same serial number and concluded the money was counterfeit. At that point he stopped counting and called the police. Officer Burkett of the Tampa Police Department responded to the call, testifying that he was called because "a large amount of money had been found and they wanted me to take custody of it."

Upon his arrival, Burkett, with Burke and another fire fighter as his witnesses, counted the money. He immediately detected that "it did not appear to be real money," as all bills had the same serial number and "there was something different about" the feel and color of the bills. The police officer concluded the money was counterfeit and secured it in his vehicle.

Parr appeared on the scene approximately one-quarter to one-half hour later. Officer Burkett approached him with the counterfeit bills, identified himself, and informed Parr he was investigating him as a suspect for the possession of counterfeit money. Officer Burkett testified that at

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that time he read Parr his Miranda rights. Parr then stated to Burkett that the money was not his. When told it had been found in a tea kettle in his kitchen he said the tea kettle belonged to his wife 3 and he had no knowledge of the kettle or the money.

Parr worked for Donna Oles at the Hour Quick Print Shop and had a personal relationship with her. Oles testified at trial that Parr had pressured her to help him produce counterfeit money. They printed twenty such bills in mid-to-late September. In early October Rendaro began contacting her to encourage her to allow Parr to use her print shop to produce more counterfeit. Oles resisted for a time but then, in mid-October, yielded to Parr's pleas and assisted Parr in printing approximately 1,115 counterfeit ten dollar bills.

On November 18, 1981, Parr and Rendaro were charged in a single indictment of conspiracy (Count One) and substantive counterfeiting violations (Counts 2, 3, 4--Parr; Counts 3, 4, 5--Rendaro). Oles also was charged in Count One, the conspiracy count, and pleaded guilty. Parr and Rendaro pleaded not guilty and were tried jointly. Both were convicted of conspiracy and two substantive counts of violating the federal conspiracy laws.

Appellant Rendaro

I. Entrapment Instruction

Rendaro contends that the trial court erred in refusing to instruct the jury as to an entrapment defense.

The entrapment defense provides a basis for acquittal where the government implants in the mind of an innocent person the disposition to commit the committed criminal acts. United States v. Reyes, 645 F.2d 285, 286 (5th Cir.1981). 4 "To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal." Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 821, 2 L.Ed.2d 848 (1958). That line is drawn by assessing the defendant's predisposition or lack of predisposition to commit the crime. Lack of predisposition is the principal element of the entrapment defense. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); United States v. Reyes, 645 F.2d at 286. The fact that governmental agents afford an opportunity to commit an offense that the defendant is predisposed to commit does not constitute entrapment. Id.; United States v. Russell, 411 U.S. at 428-29, 93 S.Ct. at 1640-41; Sherman v. United States, 356 U.S. at 372, 78 S.Ct. at 820.

Entrapment is an affirmative defense, evidence of which must be presented before the issue properly is raised. United States v. Humphrey, 670 F.2d 153, 155 (11th Cir.), cert. denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982). The defendant has the initial burden of producing evidence, or of pointing to substantial evidence injected into the case by the government in presenting its proof, see United States v. Reyes, 645 F.2d at 286-87; Sears v. United States, 343 F.2d 139, 143 (5th Cir.1965), showing government involvement or inducement. Id.; United States v. Reyes, 645 F.2d at 287; United States v. Hill, 626 F.2d 1301, 1303-04 (5th Cir.1980).

The sufficiency of the evidence proffered to raise the defense of entrapment is a question of law for the court in the first instance. United States v. Reyes, 645 F.2d at 287. Only after the defendant has sustained his initial burden does the issue of entrapment become a question of fact for the jury. Id.; United States v. Wolffs, 594 F.2d 77, 80 (5th Cir.1979). The law is clear that in order to meet his burden defendant must come forward with "more than a scintilla" of evidence, United States v. Reyes, 645 F.2d at 287, that " 'the government's conduct created a substantial

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risk that the offense would be committed by a person other than one ready to commit it.' " United States v. Humphrey, 670 F.2d at 155, quoting Pierce v. United States, 414 F.2d 163, 168 (5th Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 425 (1969). See also United States v. Dean, 666 F.2d 174, 180 (5th Cir.1982); United States v. Tobias, 662 F.2d 381, 384 (5th Cir.1981).

In determining the sufficiency of the evidence to raise the jury issue, the court...

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