830 F.2d 885 (8th Cir. 1987), 86-5096, United States v. York

Docket Nº:86-5096, 86-5097.
Citation:830 F.2d 885
Party Name:UNITED STATES of America, Appellee, v. Perry YORK, Appellant. UNITED STATES of America, Appellee, v. Peter Andrew ROBINSON, Appellant.
Case Date:October 05, 1987
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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830 F.2d 885 (8th Cir. 1987)

UNITED STATES of America, Appellee,

v.

Perry YORK, Appellant.

UNITED STATES of America, Appellee,

v.

Peter Andrew ROBINSON, Appellant.

Nos. 86-5096, 86-5097.

United States Court of Appeals, Eighth Circuit

October 5, 1987

Submitted Dec. 9, 1986.

Rehearing Denied in No. 86-5096 Oct. 29, 1987.

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[Copyrighted Material Omitted]

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Brian O'Neill and James D. O'Connor, Minneapolis, Minn., for York.

Daniel Scott, Federal Public Defender, Minneapolis, Minn., for Robinson.

Jon M. Hopeman, Asst. U.S. Atty., for appellee.

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Before LAY, Chief Judge, WOLLMAN, Circuit Judge, and HANSEN, [*] District Judge.

PER CURIAM.

I. BACKGROUND

Peter Robinson and Perry York each appeal from final judgments entered in the United States District Court for the District of Minnesota, 1 after a jury's verdict in their joint trial finding each of them guilty of armed robbery of a credit union in violation of 18 U.S.C. Secs. 2113(a) and (d), and 2. Each appellant's sentence was enhanced due to his use of a firearm during the commission of a crime of violence in violation of 18 U.S.C. Sec. 924(c). Additionally, appellant Robinson was convicted of a violation of 18 U.S.C. Sec. 922(h)(1), i.e., being a felon in receipt of a firearm which has passed through interstate commerce.

Appellant Robinson was sentenced to consecutive terms of seven and five years, respectively, on Counts 1 and 2 (armed credit union robbery and use of a firearm in a crime of violence), and to a concurrent five year term on Count 3 (felon in receipt of a firearm which has been transported in interstate commerce).

Appellant York received consecutive sentences of fifteen years on Count 1 and five years on Count 2.

There is no doubt that the appellants Robinson and York and their co-defendant James Patrick Quinn robbed the Carpenters Credit Union in St. Paul, Minnesota, a credit union whose deposits are insured by the National Credit Union Administration, on September 11, 1985, at approximately 11:30 a.m. Quinn, who was a paid government informant at the time of the robbery, pleaded guilty to the crime pursuant to a plea agreement for a fifteen year sentence and testified for the government against York and Robinson. Robinson admitted on the stand both in his direct and cross examination that he participated in the robbery, and York's counsel conceded in his opening statement to the jury that York took part in the robbery as well. Defendant York did not take the stand. Moreover, the defendants stipulated at trial that they and co-defendant Quinn robbed the Carpenters Credit Union, with defendant York leaping over the teller counter and taking approximately $4,992 of money from the teller's drawer. The issues revolve around the defendants' entrapment claims and the trial court's rulings.

II. ISSUES

For reversal of his convictions, appellant Robinson urges: (1) that his attempt at trial to put forth an entrapment defense was prejudiced by erroneous evidentiary rulings by the trial judge; (2) that Quinn's alleged solicitation of Robinson to rob the Carpenters Credit Union violated fundamental principles of fairness and due process sufficient to set aside Robinson's convictions on public policy grounds; (3) that the trial court committed reversible error by permitting the prosecutor to use Robinson's involuntary statements for impeachment; and (4) that Robinson's sentence for armed robbery could not be enhanced pursuant to 18 U.S.C. Sec. 924(c), because that section was not effective at the time of the robbery. Robinson further argues that his convictions under 18 U.S.C. Sec. 2113(d), and 18 U.S.C. Secs. 924(c) and 922(h)(1) should be vacated because the small handgun Robinson admittedly used during the robbery was not proved to be a "firearm" as defined in 18 U.S.C. Sec. 921(a)(3) and was inoperable and incapable of firing.

Appellant York asserts his convictions should be reversed for alleged trial court errors (1) in communicating with the jury ex parte concerning a question about the instructions, (2) in overruling York's objections made during the prosecutor's final argument, and (3) at sentencing. York also joins in Robinson's assignments of error concerning the trial court's evidentiary rulings on the entrapment issue, and on the due process and firearm use sentence enhancement issues. Additionally, York contends the trial court erred in admitting

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evidence tending to show York had committed other credit union robberies.

The facts surrounding each of the legal issues are recited where necessary, keeping in mind that the evidence must be construed in the light most favorable to the jury's verdict. See Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

A. The Entrapment Claims

The first issue for review pertains to the claim of entrapment and is jointly raised by the appellants.

First, appellants contend that the trial court should have, but did not, permit them to introduce into evidence Robinson's exhibit number 21, a group of Federal Bureau of Investigation (FBI) administrative reports which documented Quinn's contacts with the government and which were offered to support the assertion that Quinn was an agent of the government. Additionally, and related to this contention, is appellants' assertion that the trial court erred by refusing to instruct the jury that Quinn was a government agent (Robinson's proposed instruction number 42), and that the government is responsible for its agents (Robinson's proposed instruction number 43).

With respect to the trial court's evidentiary ruling on the administrative reports, it is well settled that a district court has broad discretion in judging the relevance and admissibility of evidence. Smith v. Firestone Tire and Rubber Co., 755 F.2d 129, 134 (8th Cir.1985). "Absent a clear showing of an abuse of discretion, a district court's determination regarding the inadmissibility of certain evidence will not be disturbed on appeal." Id. at 134. We find no error in Judge Renner's ruling denying the admission of the administrative reports. Appellants were liberally permitted to explore the nature and breadth of Quinn's relationship with the FBI, including the frequency and contents of his reports as an informant, and the record shows that appellants were permitted to introduce several other exhibits documenting Quinn's activities as an informant, some of which were duplicative of the excluded exhibit.

Appellants' assertion that the trial court erred in refusing to give Robinson's proposed instructions 42 and 43 is also without merit.

Proposed instruction number 42 would have instructed the jury that, for purposes of entrapment, Quinn was a government agent as a matter of law.

The issue of whether an informant should be considered a government agent is generally an issue of fact for the jury. United States v. Hoppe, 645 F.2d 630, 633 (8th Cir.1981). This is especially so where, as here, there was evidence that the informant was admonished several times by the FBI agents to whom he reported not to engage in the type of conduct which gave rise to these charges. The proposed instruction would have withdrawn the issue of agency from the jury and was not warranted under the evidence.

Proposed instruction number 43 was also directed at establishing Quinn's agency. The proposed instruction generally asserted that the government remains responsible for the activities of its agents or informants, and that the government cannot later "claim disassociation through ignorance."

Again, the jury remained free to find that Quinn acted as a government agent throughout the conduct which gave rise to these charges. Counsel was permitted to extensively argue that Quinn was an agent, and that the government was responsible for his conduct. The trial court's instructions contemplated the link between the government and Quinn, and correctly instructed the jury on the law of entrapment. The defendants also assert that Robinson's proposed instructions number 42 and 43 were necessary in order to "cure" the alleged error by the trial court in refusing admission of Robinson's exhibit 21. Since we have already determined that the trial court committed no error in denying admission of Robinson's exhibit 21, the alternative argument asserted for submission of

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Robinson's proposed instructions number 42 and 43 falls of its own weight.

We find no error in the trial court's refusal to adopt and submit to the jury Robinson's proposed instructions number 42 and...

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