U.S. v. Hodges, 89-5212MN
| Decision Date | 13 June 1991 |
| Docket Number | No. 89-5212MN,89-5212MN |
| Parties | UNITED STATES of America, Appellee, v. David HODGES, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Barry V. Voss, Minneapolis, Minn., for appellant.
John W. Lee, Minneapolis, Minn., for appellee.
Before ARNOLD, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and LOKEN, Circuit Judge.
David Hodges appeals his convictions for possessing cocaine, helping to sell cocaine, and conspiring to distribute cocaine. Hodges claims error in the way the District Court 1 instructed his jury. The Court refused Hodges's request to tell the jury they could acquit the defendant if the police entrapped him. The Court explained its refusal by noting that no reasonable juror could conclude that Hodges had in fact been entrapped. We agree, and affirm Hodges's conviction.
In 1987 Deputy Salvatore Catapano of the Hennepin County Sheriff's Department went under cover to investigate drug trafficking in the Minneapolis area. Posing as "Tony," Deputy Catapano set about trying to buy cocaine. He contacted Anthony Bell. Bell did not have any cocaine for sale, but he told Tony he knew where to get some. Bell called, among others, a friend and fellow cocaine user, David Hodges. On two occasions Hodges agreed to supply cocaine to Bell for him in turn to sell to Tony. The first sale involved a quarter of an ounce of cocaine, the second sale four ounces. A second Deputy, Jeff Burchette, posed as Tony's customer and moneyman, one "Jason," for the second sale.
After the money and cocaine changed hands during the second deal, the Deputies revealed their true identities. Bell and Hodges were both arrested and charged. Bell struck a deal with the government. As part of that deal he testified against his friend at Hodges's trial. The jury convicted Hodges of four crimes: conspiring with Bell to sell cocaine, helping Bell sell the drug to the Deputy Sheriffs on two occasions, and possessing cocaine. Judge Doty sentenced Hodges to two years and three months in jail for each offense. He also ordered that Hodges serve his sentences concurrently.
Bell's role in these crimes lies at the center of Hodges's appeal. He unwittingly led the police to Hodges. The appellant now argues that Bell was, without realizing it, converted into an undercover agent. Therefore, Hodges presses, Bell's requests to him to supply cocaine were the actions of the police. Those requests allegedly supply the direct government action necessary to begin establishing an entrapment defense. In addition, Hodges contends he did not really want to be involved in these drug sales. He says he was not, in the language of entrapment, predisposed to break these laws. Hodges admits that he is a drug user. He claims, however, that he is not a drug dealer. He supposedly supplied the cocaine for these sales only to help his friend Bell make enough money to fulfill a lifelong dream of studying acting in California. Hodges argues that his lack of predisposition, and Bell's unwitting status as a government agent, entitled him to have his jury told about the defense of entrapment before they began their deliberations. And, Hodges concludes, the District Court's abuse of its discretion in denying his requested jury instruction requires that he be given a new trial.
We are not persuaded that the District Court erred in refusing the entrapment instruction. Inducement by private citizens does not ordinarily create an entrapment issue. The usual entrapment situation involves direct contact between a government agent and a prospective defendant. See, e.g., Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988); United States v. Lard, 734 F.2d 1290 (8th Cir.1984). The go-between in this case, Bell, was a private citizen. Hodges does not contend, and the evidence does not show, that he had any direct contact with the undercover officers. However, courts have also recognized that, under certain circumstances, an unknowing middleman ...
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