U.S. v. Polito, 88-1048

• Decision Date: 12 September 1988
• Docket Number: No. 88-1048,88-1048
• Citation: 856 F.2d 414
• Parties: 26 Fed. R. Evid. Serv. 1172 UNITED STATES of America, Appellee, v. John D. POLITO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 414

856 F.2d 414

26 Fed. R. Evid. Serv. 1172

UNITED STATES of America, Appellee, v. John D. POLITO, Defendant, Appellant.

No. 88-1048.

United States Court of Appeals First Circuit.

Argued July 28, 1988.

Decided Sept. 12, 1988.

John G. Vanacore, Concord, N.H., with whom Leahy, Vanacore, Nielsen & Trombly and David Trumble, Milton, N.H., were on brief, for defendant, appellant.

Peter E. Papps, Asst. U.S. Atty., with whom Richard V. Wiebusch, U.S. Atty., Concord, N.H., was on brief, for appellee.

Before CAMPBELL, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

On a midsummer day in 1987, a federal grand jury indicted defendant-appellant John D. Polito for distribution of cocaine. ¹ He was tried in the United States District Court for the District of New Hampshire, adjudged guilty by a jury, and sentenced. Polito then appealed. Though the yarn spun at trial was an absorbing one which evoked images from an earlier, perhaps more romantic time, ² we resist the temptation to tell the tale in full. Instead, we discuss the facts in connection with the assignments of error--and then, only to the extent necessary to place each point into its proper perspective.

I. ENTRAPMENT

A. The Entry-Level Burden. Appellant's principal assertion is that the jury should have been--but was not--instructed on the defense of entrapment. It is, of course, settled that such a defense comprises two interrelated elements: (1) government inducement of an accused's criminal conduct, coupled with (2) the lack of predisposition on the person's part to engage in such skulduggery. Mathews v. United States, --- U.S. ----, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988); United States v. Murphy, 852 F.2d 1, 4-5 (1st Cir.1988); United States v. Coady, 809 F.2d 119, 122 (1st Cir.1987). Although "[t]he question of entrapment is generally one for the jury," Mathews, 108 S.Ct. at 886, that is not universally so. See, e.g., Coady, 809 F.2d at 121-22; United States v. Fera, 616 F.2d 590, 596 (1st Cir.), cert. denied, 446 U.S. 969, 100 S.Ct. 2951, 64 L.Ed.2d 830 (1980); see also Mathews, 108 S.Ct. at 888 (remanding for consideration of whether "the evidence at trial was insufficient to support an instruction on ... entrapment"). Although the burden of proof does not shift--the prosecution must prove guilt beyond a reasonable doubt (including lack of entrapment, if the defense is properly in the case)--a defendant who wishes entrapment to be considered must shoulder what we have described as an "entry-level burden." Coady, 809 F.2d at 122. This burden requires that he proffer "a threshold showing that a government agent turned him from a righteous path to an iniquitous one." Id.; see also Murphy, 852 F.2d at 5 (quoting Coady ); United States v. Bradley, 820 F.2d 3, 7 (1st Cir.1987) (same).

The initial showing necessitates some evidence on each of the two prongs of the defense: inducement and unreadiness. There is, at present, no bright-line rule in this circuit as to the quantum of proof which will enable the proponent to cross the threshold and warrant a charge to the jury on entrapment. See generally Murphy, 852 F.2d at 4-5 (discussing existing uncertainties). But though the overall dimensions of a defendant's entry-level burden may be less than incandescently clear, our cases leave no doubt that, at the very least, the proffered evidence must "amount to more than a mere scintilla." Fera, 616 F.2d at 596.

We have read the entire record in this case with considerable care. We find that Polito offered virtually no proof on either furculum. Even when we take the facts most generously in appellant's favor, the totality of what confronts us adds up to zero--or so near zero as to constitute less than the merest imaginable scintilla. Thus, we can comfortably leave for some other day any attempt to limn more exactly the size and shape of the theoretical entry-level burden.

B. Discussion. As to inducement, the defendant's asseveration amounts to the quixotic triumph of hope over reason. When the object of his affections jumped ship, see supra note 2, Polito contacted the DEA, thinking rather wishfully that the agency would use its resources to bring Nicky to earth. He spoke mainly with Agent Keaney. He asked for information concerning Nicky's whereabouts, but received none. Desperate for a lead, Polito--in his own words--"decided that I was going to get information for [Keaney] and that [Keaney] would help me." 2 Trial Transcript (T.) at 116. Defendant proceeded to drum up, and participate in, three separate cocaine transactions (including the one for which he was indicted). The record shows beyond any question that, far from enticing the accused into the drug trade, Keaney never suggested such a perilous course. Indeed, it is uncontroverted that, until after the third transaction was consummated, Keaney never knew with any certainty that Polito was engaged in trafficking.

Taking the evidence of record in the light most flattering to appellant, and drawing all reasonable inferences therefrom to his advantage, the testimony has not the slightest tendency to show that the DEA led Polito from the righteous path to the iniquitous one. Defendant conceded that Keaney specifically told him "not to sell drugs." 2 T. at 157. Putting the best face on things, defendant's version of events showed only an unfounded, unilateral belief that, by dealing drugs and discovering data, he could curry official favor and put Keaney in his debt. As Polito stated at trial:

I planned to ... get a buy.... and then set them up ... so that [Keaney] could help me ...--in my own mind--that he could do something to help me.

Id. at 119. See also id. at 116 (quoted supra ); id. at 131 ("My only motivation was to find out information--to find out a drug dealer so I could get to Al Keaney and get information about Nicky.").

It is true that effective inducement can sometimes be subtle rather than blunt, indirect rather than direct. Yet there must be some plausible connection between government conduct and a defendant's ensuing participation in felonious activity. The accused's subjective belief that the authorities will welcome his criminality, without more, falls well short of showing government instigation of the kind necessary to animate an entrapment defense. Cf., e.g., Coady, 809 F.2d at 122 ("mere solicitation" by government actors, without more, does not comprise entrapment); United States v. Kakley, 741 F.2d 1, 4 (1st Cir.) ("[c]onclusory and self-serving statements" insufficient to meet defendant's initial burden of production), cert. denied, 469 U.S. 887, 105 S.Ct. 261, 83 L.Ed.2d 197 (1984); Fera, 616 F.2d at 596 (government's "affording the defendant the opportunity for commission of the offense," standing alone, not enough to make out entrapment).

Because appellant offered not even a scintilla of evidence competent to show inducement, he plainly failed to satisfy his entry-level burden. Absent any cognizable proof of one of the two essential elements of an entrapment defense, the district court was on solid ground in declining to submit the issue for jury consideration. ³

II. THE GRAPES OF WRATH

A. What Transpired. Defendant's next point stems from an incident which occurred during his direct examination. In a nonresponsive aside, Polito boldly referred to some aborted plea negotiations. The reference was plainly an improper one. See Fed.R.Evid. 410(4) (outlining inadmissibility of evidence anent unsuccessful plea discussions). The prosecutor objected. The judge struck the unsavory testimony, instructed the jury to disregard it, summoned counsel to sidebar, and directed the following remarks to the defense lawyer:

So you will know, Mr. [Lawyer], I intend, regardless of the outcome, to report that last bit of testimony to the New Hampshire Bar Association as a violation of the rules of professional conduct. I want you to know. You knew damn well about [the offensive testimony]. That's improper. You can take it up with the bar, but you make damn sure [Polito] doesn't do that again.

2 T. at 129-30.

The court then recessed so that the defendant and his attorney could confer. When the trial resumed--and before the jury was returned to the courtroom--defendant sought a mistrial, claiming that he could not "get a fair trial, the judge being so angry." Id. at 130. The motion was denied.

The following day, the matter was resurrected. Defense counsel raised the possibility that, although the colloquy occurred at sidebar, the jury might have overheard it. A voir dire was requested. The court declined the request but indicated that it would instead address the jury. The lawyer remonstrated no further, but merely responded, "Thank you." The court then proceeded to give a strong prophylactic instruction.

It has been brought to my attention that perhaps some of you may have overheard a conversation between myself and defendant's counsel at the side bar yesterday. You have to disregard this. He satisfactorily explained to me it was his client not himself that engaged in an outburst, which is not to be held against the defendant or his attorney in any regard. Anything I have stated or done at side bar is not to concern you.

3 T. at 4. Counsel neither objected to this instruction nor renewed the earlier mistrial motion.

There followed the attorneys' summations and the court's charge. During the charge, the judge again adverted to the incident at sidebar:

Nothing that I may have said or done in the course of trial nor that I say in the course of these instructions is to be taken as an indication that I hold any opinion about the facts of the case or how the case should be decided. It is not my function to determine the facts but rather yours alone as jurors.

In like fashion, there have been objections and rulings and side bar conferences throughout the course of trial with respect to the offers of evidence. If you overheard any such conversations at side...