U.S. v. Coady, 86-1676

• Decision Date: 13 January 1987
• Docket Number: No. 86-1676,86-1676
• Parties: UNITED STATES of America, Appellee, v. Neil Patrick COADY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 119

809 F.2d 119

UNITED STATES of America, Appellee, v. Neil Patrick COADY, Defendant, Appellant.

No. 86-1676.

United States Court of Appeals, First Circuit.

Argued Dec. 3, 1986.

Decided Jan. 13, 1987.

Paul Shechtman, for defendant, appellant.

James H. Leavey, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief, for appellee.

Before BOWNES, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Neil Patrick Coady was indicted in the United States District Court for the District of Rhode Island on a single count of illicit distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1). He was convicted by a jury on May 14, 1986, and thereafter sentenced. This proceeding ensued. We affirm.

I.

The facts, insofar as they are pertinent to this appeal, are susceptible of succinct summary. It is undisputed that, on the afternoon of September 19, 1983, three men assembled at a restaurant in North Smithfield, Rhode Island: Richard Scovel, Ronald Riccotti, and the appellant. There is little honor among evildoers: Scovel, who was posing as a prospective purchaser of the contraband, was in reality an undercover agent of the federal Drug Enforcement Administration (DEA), and Riccotti had lately become a government informant. Needless to say, the appellant was blissfully unaware of this role playing. The parties agree that Coady gave Riccotti a manila envelope in the parking lot of the pub, which Riccotti promptly handed to Scovel. The DEA agent placed the container in his automobile, and the trio went into the eatery and sat together in a booth.

After some desultory conversation, Scovel returned to his car, opened the envelope, and field-tested its contents. Satisfied that the white powder was in fact cocaine, he rejoined his quondam companions in the booth. Scovel then told appellant that the "stuff looked real good." Coady responded with considerable animation. He bragged about the purity of "his" cocaine, offered assurances that the drug was in plentiful supply, and boasted of intimate connections with the local gendarmerie. As Coady prattled on, Scovel delivered the agreed purchase price ($5,600) under the table to Riccotti--who proceeded to count it and pass some of the bills to the appellant.

Coady took the stand in his own behalf. He did not dispute the occurrence of the events narrated above, but attempted to blunt the force of those circumstances. First, he gave a rather involved account of how, on the day in question, he happened to be holding the manila envelope for Riccotti, without the slightest knowledge of what it contained. Next, he explained his presence at the scene; he drove there (innocently) with the envelope at Riccotti's request, and returned the envelope to its owner in the parking lot. He acknowledged that the trio, himself included, entered the pub and occupied the booth. But, he swore that, when Scovel left temporarily to return to his car, Riccotti for the first time informed him that a cocaine deal was in progress. Riccotti, so Coady claimed, asked him to lie and pretend to be "running the whole operation;" Coady immediately agreed to do so. On this basis, the appellant brands all of his ensuing boasts to Scovel as falsehoods designed to paint the apocryphal picture that Riccotti (for some unexplained reason) wanted to create.

The accounts again converge. Shortly after Coady's rodomontade had run its course and the money had changed hands, Scovel and the appellant exchanged telephone numbers and the three men went their separate ways. Coady's indictment, trial, conviction, sentence, and appeal followed in due season.

II.

The appellant complains, first, that the district court erred in failing to instruct the jury on the law of entrapment. For a variety of reasons, this initiative need not occupy us for long.

Coady testified in his own behalf at trial. When he was under vigorous cross-examination, defense counsel objected to the prosecutor's attempt to show the defendant's involvement in other drug deals as evidence of his predisposition to commit the offense charged. The district judge, at sidebar and out of the jury's earshot, properly inquired as to whether entrapment was in issue. The following colloquy ensued:

MR. CARNESI ¹: I'm not offering it, sir.

THE COURT: You're not. Entrapment is not an issue in this case[?]

MR. CARNESI: No, sir.

The district judge, based on this representation, barred the government from inquiring into Coady's criminal proclivities. At no time prior to the close of all the evidence did the defendant seek to reverse his position or to reopen the door which had been so firmly shut.

Coady's argument on this point boils down, quite simply, to the notion that his mid-trial disclaimer of an entrapment defense was no bar to his resurrection of the defense after all of the evidence had been heard. The government was prepared to show Coady's criminal predisposition by the introduction of proof which was at one and the same time highly probative and severely damaging. This evidence was excluded, at the appellant's behest, because of his concession that entrapment had no part to play in his defense. His later attempt to revive the issue (after it was too late for the government to present its proof) cannot be countenanced.

Even less plausible is the appellant's effort to fault the district court for failing to charge the jury on the (abandoned) entrapment defense. Given counsel's midtrial withdrawal of that issue from the case, and the prosecution's reliance on that representation, the judge had no choice other than to rule as he did. Coady seems not to have learned that "[h]aving one's cake and eating it, too, is not in fashion in this circuit." United States v. Tierney, 760 F.2d 382, 388 (1st Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 131, 88 L.Ed.2d 108 (1985).

There is yet another reason why Coady's first argument must fail: he presented insufficient evidence to justify an entrapment instruction. It is too plain to warrant citation of authority that a party is not entitled to a charge unless the record, viewed most charitably to the proponent of the instruction, furnishes an arguable basis for application of the proposed rule of law. We have previously hewed to this line as respects entrapment defenses. E.g., United States v. Fera, 616 F.2d 590, 596 (1st Cir.) (defendant not entitled to jury instruction on entrapment where no adequate evidentiary predicate was presented), cert. denied, 446 U.S. 969, 100 S.Ct. 2951, 64 L.Ed.2d 830 (1980).

Entrapment does not blossom whenever a person succumbs to his own greed or to the lure of easy money: it blooms only when the crime for which the miscreant is subsequently charged was instigated by minions of the law and the offender had no previous disposition towards commission of the deed. Id. The initial burden of bringing to light some evidence of entrapment must be shouldered by the accused. See Kadis v. United States, 373 F.2d 370, 374 (1st Cir.1967). "A factual issue sufficient to require submission to a jury arises only if [the accused's] evidence amount[s] to more than a mere scintilla." Fera, 616 F.2d at 596. See also United States v. Luce, 726 F.2d 47, 49 (1st Cir.1984); Kadis, 373 F.2d at 373-74. Only if a defendant makes out a threshold showing that a government agent turned him from a righteous path to an iniquitous one does the government's obligation affirmatively to disprove entrapment mature. See United States v. Rodrigues, 433 F.2d 760, 761 (1st Cir.1970), cert. denied, 401 U.S. 943, 91 S.Ct. 950, 28 L.Ed.2d 224 (1971).

As part and parcel of his entry-level burden, the defendant must adduce evidence tending fairly to show his unreadiness to commit the offense. United States v. Espinal, 757 F.2d 423, 425-26 (1st Cir.1985); United States v. Kakley, 741 F.2d 1, 3 (1st Cir.), cert. denied, 469 U.S. 887, 105 S.Ct. 261, 83 L.Ed.2d 197 (1984); Fera, 616 F.2d at 596. None was forthcoming here. The record, even when viewed most hospitably to the appellant, indicates merely that Riccotti created a criminal opportunity by asking Coady to involve himself, and sweetened the pot with an offer of payment. The appellant, without more, leaped at the chance to participate. It is well settled that mere solicitation cannot be equated with entrapment, Espinal, 757 F.2d at 425, and that entrapment does not arise just because government agents resort to pretense. Fera, 616 F.2d at 596. Here, Coady--even if his story was to be believed--proved nothing beyond these (insufficient) facts.

In sum, there was an utter absence of any evidence that the appellant was unprepared to commit the malefaction or that he was corrupted by any government agent. At most, law enforcement personnel furnished Coady with the occasion to perpetrate a crime which he was not otherwise undisposed to commit. He was, on any reasoned view of the record, no reluctant dragon snared by some impermissible duplicity on the part of the DEA. Quite the contrary, he was a willing participant. The district court was entirely correct in refusing to submit the entrapment issue to the jury.

III.

The appellant's remaining asseveration centers on an allegedly erroneous view of the law espoused in the prosecutor's closing statement to the jury and uncorrected, so Coady argues, in the district court's instructions. Like a mirage in the shimmering heat of the desert, however, the contention cannot withstand close scrutiny.

In the opening segment of his summation, Fed.R.Crim.P. 29.1, the prosecutor suggested to the jurors that, even if they were to credit Coady's version of what had transpired, they could nevertheless find him guilty as an aider and abetter. When this observation was made, defense counsel raised no contemporaneous objection; instead, he proceeded to argue to the jury that the "distribution" to which criminal liability attaches, see 21 U.S.C. Sec. 841(a)(1), had been completed, unbeknownst to...