U.S. v. Layeni

• Citation: 90 F.3d 514
• Decision Date: 12 September 1996
• Docket Number: No. 95-3032,95-3032
• Parties: , 45 Fed. R. Evid. Serv. 345 UNITED STATES of America, Appellee, v. Olurotimi Olatunde LAYENI, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 514

90 F.3d 514

319 U.S.App.D.C. 291, 45 Fed. R. Evid. Serv. 345

UNITED STATES of America, Appellee, v. Olurotimi Olatunde LAYENI, Appellant.

No. 95-3032.

United States Court of Appeals,

District of Columbia Circuit.

Argued May 16, 1996.

Decided July 30, 1996.

Rehearing Denied Sept. 12, 1996. ^*

Appeal from the United States District Court for the District of Columbia (No. 94cr00024-01).

Roberto Iraola, Washington, DC, argued the cause for appellant. Benjamin B. Klubes and Barry Coburn were on brief.

Magdalena A. Bell, Assistant United States Attorney, argued the cause for the appellee. Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Thomas C. Black and Eileen C. Mayer, Assistant United States Attorneys, were on brief.

Before: BUCKLEY, HENDERSON and ROGERS, Circuit Judges.

KAREN LECRAFT HENDERSON, Circuit Judge:

The Federal Bureau of Investigation (FBI) initiated Operation Wild Horse to target heroin importation and distribution in the Washington area. Appellant Olurotimi Olatunde Layeni was caught during the investigation. A jury convicted him of conspiracy to distribute and to possess with intent to distribute heroin as well as multiple counts of heroin distribution. He challenges his conviction on two grounds. First, he contends there was evidence from which a reasonable juror could find he had been induced by a government informant, albeit indirectly, to participate in the criminal activity and therefore the district court should have instructed the jury on the defense of entrapment. Second, he argues that the admission of the government's expert testimony denied him a fair trial. He also challenges his sentence, arguing that in several respects the district court erred in calculating his offense level under the United States Sentencing Guidelines (Guidelines). For the following reasons we affirm.

I

Layeni traces his misfortunes to his friendship with Arlene White. White, a drug broker, was the girlfriend of Layeni's cousin Francis, a heroin supplier to street gangs in the District of Columbia. In June 1991 Layeni, at White's request, obtained heroin from one of Francis's associates and, posing as Francis, helped White sell the heroin to a man they knew as "Ralph Martin." Unbeknownst to both White and Layeni, he was an undercover FBI agent. According to Layeni, the June 1991 deal was his first step into the world of illegal drugs. It was not to be his last. During the next two and one-half years Layeni conspired with others in the heroin trade and distributed large quantities of heroin to Ralph. In December 1993 the FBI arrested Layeni. An eleven-count superseding indictment charged him with conspiring to distribute, and to possess with intent to distribute, heroin as well as with ten counts of heroin distribution. At trial Layeni did not dispute that he committed all the acts charged in the indictment; indeed the transactions were recorded on audio and video tape. His sole defense was entrapment. He claimed he had been entrapped in connection with the initial (June 1991) transaction and that his criminal activities throughout the next two and one-half years were the product of the initial entrapment. The district court declined to instruct the jury on entrapment and the jury convicted him on all counts. The court sentenced him to 210 months of imprisonment on each count, to run concurrently.

II

A. Entrapment.

Layeni argues first that the district court erred in declining his request for an entrapment instruction. The entrapment defense has two elements: government inducement to commit a crime and lack of predisposition on the part of the defendant to commit the crime. " [O]nce a defendant meets his burden of proving that the government persuaded him to commit a crime, the government must prove beyond a reasonable doubt that the defendant was ready and willing to do so." United States v. McKinley, 70 F.3d 1307, 1312 (D.C.Cir.1995) (quoting United States v. Whoie, 925 F.2d 1481, 1485 (D.C.Cir.1991)). Here, the district court declined to instruct the jury on entrapment because the record contained "not ... even a scintilla of evidence of an inducement by a governmental official." 10/26/94 Tr. at 47. See Lopez v. United States, 373 U.S. 427, 434-35, 83 S.Ct. 1381, 1385-86, 10 L.Ed.2d 462 (1963) ("[B]efore the issue of entrapment can fairly be said to have been presented in a criminal prosecution there must have been at least some showing of the kind of conduct by government agents which may well have induced the accused to commit the crime charged."). The issue before us is whether there is any evidence in the trial record from which a reasonable juror could find that the government induced Layeni to participate in the June 1991 transaction. ¹ Our review is de novo. United States v. Ortiz, 804 F.2d 1161, 1164 (10th Cir.1986).

We view the evidence relating to the June 1991 deal in the light most favorable to Layeni as follows: As early as February 1990 Ellis Watson, a federal prisoner and an uncle of Arlene White's brother-in-law, became an unpaid FBI informant. In this capacity he was in regular contact with FBI agent Wanda King, the supervisor of Operation Wild Horse. Watson set up a sting to nab Francis who, to repeat, was White's boyfriend and Layeni's cousin. To that end, Watson called White from prison in June 1991 and asked her to introduce his friend "Ralph" to Francis. White agreed, understanding that Ralph wanted to buy heroin from Francis, but she did not know that Watson had ties to the FBI. Meanwhile, Watson telephoned King, told her about the proposed sting and advised her that the FBI's undercover agent should use the name "Ralph." King assigned FBI Agent Edward Dickson to the case. He contacted White and introduced himself as Ralph Martin. White arranged for him to buy heroin from Francis on June 19. Francis, however, was out of town that day. White decided to take over the deal herself and have Layeni pose as Francis.

Accordingly, on the morning of June 19 White contacted Layeni. After describing the proposed transaction with Ralph, White asked Layeni to obtain the heroin from one of Francis's associates ("Tunji") and to help her consummate the deal. According to Layeni, he at first declined her request but eventually "relented" because White asserted that she needed money to pay bills. After agreeing to assist White, Layeni persuaded Tunji to supply the heroin and, after White introduced Layeni to Ralph as "Francis," the two (White and Layeni) sold an ounce of heroin to Ralph. White split the profit with Layeni.

Layeni contends that White induced him to participate in the June 19 deal by making repeated requests coupled with pleas based on need, sympathy and friendship. White, however, was a private citizen, not an agent knowingly acting on behalf of the government, and there is no defense of private entrapment. United States v. Burkley, 591 F.2d 903, 911 n. 15 (D.C.Cir.1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1516, 59 L.Ed.2d 782 (1979). Nevertheless, Layeni asserts that because Watson, a government informant and hence government agent, solicited White, White's alleged inducement of Layeni can be imputed to Watson and thus to the government. We disagree. Even assuming a jury could find both that Watson acted as a government agent when he solicited White's assistance and that White induced Layeni, Layeni's entrapment theory fails because he cannot satisfy the government inducement element of the entrapment defense.

We begin by noting that "entrapment is a relatively limited defense" grounded on "the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense, but was induced to commit them by the Government." United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366 (1973). Some courts have held that there is no basis for the entrapment defense if the defendant is not induced directly by a government official or an agent deliberately acting on behalf of the government. See, e.g., United States v. Martinez, 979 F.2d 1424, 1432 (10th Cir.1992), cert. denied, 507 U.S. 1022, 113 S.Ct. 1824, 123 L.Ed.2d 454 (1993); United States v. Emmert, 829 F.2d 805, 808-09 (9th Cir.1987); United States v. Beverly, 723 F.2d 11, 12 (3d Cir.1983) (per curiam). Other courts, however, "have also recognized that, under certain circumstances, an unknowing middleman ... can satisfy the element of governmental inducement in another's entrapment defense." United States v. Hodges, 936 F.2d 371, 372 (8th Cir.1991). That is, "the government may entrap a defendant through the actions of an 'ignorant pawn.' " United States v. Jones, 839 F.2d 1041, 1054 (5th Cir.), cert. denied, 486 U.S. 1024, 108 S.Ct. 1999, 100 L.Ed.2d 230 (1988).

Our circuit has not been clear whether or under what circumstances a defendant may claim he was entrapped by an "unknowing intermediary." In United States v. Mayo, 498 F.2d 713 (D.C.Cir.1974), after declaring that the entrapment defense is available if "a Government official uses a private citizen as an agent, and in such manner induces" the defendant, id. at 716, we indicated that the private intermediary must be "purposefully acting on behalf of the Government," id. at 717 (dictum). However, a decade earlier, in Johnson v. United States, 317 F.2d 127 (D.C.Cir.1963), a decision relied on by Mayo, we stated that an entrapment defense may apply if an "officer acts through a private citizen" to induce the defendant, id. at 128, and we suggested that the intermediary need not knowingly act on behalf of the government (the intermediary there was indicted along with the defendant). ²

In any event, assuming that under some circumstances a defendant may be entrapped by an unknowing intermediary, there is no basis to impute to the government White's decisions to solicit Layeni and, allegedly, to induce him to assist her on June 19. There is no evidence...