U.S. v. Richard, 87-5259

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation872 F.2d 253
Docket NumberNo. 87-5259,87-5259
PartiesUNITED STATES of America, Appellee, v. Jackie RICHARD (Black Bear), Appellant.
Decision Date12 April 1989

Bruce Ellison, Rapid City, S.D., for appellant.

Lonnie Bryan, Rapid City, S.D., for appellee.

Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and McMILLIAN *, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Jackie Richard appeals from her conviction for distributing less than 50 kilograms of marijuana in violation of 21 U.S.C. Sec. 841(a)(1) (1982). We affirm the judgment of the district court. 1

I. BACKGROUND

A paid government informant, Nathan Moose, was hired by the Federal Bureau of Investigation (FBI) to attempt drug purchases on the Pine Ridge Indian Reservation. On September 23, 1986, Moose contacted Richard at a residence owned by her mother-in-law. Moose concluded that Richard was under the influence of marijuana. Nevertheless, he persuaded Richard to sell him one-quarter of an ounce of marijuana for $60.00. It is undisputed that Richard sold Moose the drugs only after Moose previously made three unsuccessful attempts. On April 9, June 6, and August 7, 1986, Moose attempted unsuccessfully to purchase drugs from Richard.

Richard's defense was that she was entrapped because she sold Moose marijuana only after having been requested to sell drugs on three prior occasions. Richard also defended against the drug charges by arguing that she was under the influence of marijuana and thus unable to form the specific intent necessary to satisfy 21 U.S.C. Sec. 841(a)(1). The district court denied all of Richard's motions for judgment of acquittal. The court, however, instructed the jury on the issues of entrapment and intoxication.

The jury found Richard not guilty of possession with intent to distribute. Nevertheless, the jury found Richard guilty of distribution. The district court sentenced Richard to thirty months incarceration. This appeal followed and for the following reasons we affirm.

II. DISCUSSION

Richard raises several issues on appeal, only two of which warrant discussion.

A. Entrapment

Richard argues that she was entrapped as a matter of law and therefore the district court erred in denying her motions for judgment of acquittal.

This is not the first time that this court has had an occasion to review FBI Agent Graf's use of paid informants to combat drug distribution on the Pine Ridge Indian Reservation. See United States v. Janis, 831 F.2d 773, 777 (8th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1046, 98 L.Ed.2d 1009 (1988). In Janis we were faced with the question of whether the arrangement between Agent Graf and his informant was an impermissible contingent fee arrangement. Although analytically distinct from entrapment, the issue in Janis posed similar concerns. Id.

Entrapment as a matter of law is established when the evidence clearly indicates that a "government agent originated the criminal design; that the agent implanted in the mind of an innocent person the disposition to commit the offense; and that the defendant then committed the criminal act at the urging of the government agent." United States v. Shaw, 570 F.2d 770, 772 (8th Cir.1978) (citations omitted).

As this court noted in United States v. Lard, 734 F.2d 1290, 1293 (8th Cir.1984), the critical question in the entrapment analysis is "whether the government agent caused or induced the defendant to commit a crime he was not otherwise predisposed--i.e., willing and ready--to commit whenever a propitious opportunity arose." This court has also noted that "[i]n distinguishing between the naive first offender and the street wise habitue, the cases reveal that the most important predisposition factor is whether a defendant's reluctance to engage in criminal activity has been overcome by repeated government inducement." United States v. Dougherty, 810 F.2d 763, 769 (8th Cir.1987) (citation omitted).

The instant case presents the court with a difficult question. There is no doubt that Richard was guilty of possession of marijuana. Richard, however, was not charged with simple possession; she was charged with possession with intent to distribute and distribution, serious charges. Richard, nevertheless, was found not guilty of possession with intent to distribute. Apparently the jury was not persuaded that Richard possessed the marijuana with intent to distribute it. The jury, however, convicted Richard of actually distributing marijuana.

Arguably the jury's finding of no guilt on the possession with intent to distribute charge shows that Richard was not predisposed to distribute marijuana, thus adding credence to her entrapment claim. This argument is even more persuasive considering the fact that Richard sold the marijuana on the informant's fourth attempt to buy drugs from her and at a time when she was intoxicated.

We are forced in this case to draw the difficult line that distinguishes "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). We reluctantly conclude that Richard was not entrapped as a matter of law. While we do not believe that Richard was entrapped as a matter of law there was sufficient evidence to allow Richard to argue that defense to the jury. Indeed, the district court properly instructed the jury on the entrapment defense.

B. Cruel and Unusual Punishment

Richard argues that the imposition of a thirty month sentence for distributing one-quarter of an ounce of marijuana constitutes cruel and unusual punishment. Richard notes that she was convicted under a statute that covers distribution of up to fifty kilograms (110 pounds) of marijuana and carries a maximum sentence of five years imprisonment and a $250,000 fine. Richard notes that she received half of the maximum sentence for her first offense of distributing a small amount of marijuana. Richard also notes that the Bureau of Prisons...

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  • U.S. v. Collins
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • August 25, 2003
    ...settled that a sentence within the range provided by statute is generally not reviewable by an appellate court. United States v. Richard, 872 F.2d 253, 255 (8th Cir.1989). Furthermore, such a sentence that falls within the range prescribed by statute has never been found to be an Eighth Ame......
  • U.S. v. Chauncey
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • August 25, 2005
    ...these principles, we have determined that a limited review does exist for sentences within statutory limits. See United States v. Richard, 872 F.2d 253, 255 (8th Cir.1989) (reviewing sentence within statutory parameters for Eighth Amendment disproportionality, no violation); Woosley v. Unit......
  • U.S. v. Kummer, 93-1904
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • March 17, 1994
    ...the defendant to commit a crime he or she was not otherwise predisposed, e.g., willing and ready, to commit. United States v. Richard, 872 F.2d 253, 254 (8th Cir.1989). Determining a defendant's predisposition requires examination of the defendant's personal background to see "where he sits......
  • United States v. Vanhorn
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • February 21, 2014
    ...not reviewable by an appellate court.” United States v. Collins, 340 F.3d 672, 679 (8th Cir.2003), citing United States v. Richard, 872 F.2d 253, 255 (8th Cir.1989). This court has never held a sentence within the statutory range to violate the Eighth Amendment. United States v. Neadeau, 63......
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