Daniels v. United States, s. 10–CF–737

• Decision Date: 23 November 2011
• Docket Number: Nos. 10–CF–737,10–CF–834.,s. 10–CF–737
• Citation: 33 A.3d 324
• Parties: Willis M. DANIELS and Antonio Peoples, Appellants, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

33 A.3d 324

Willis M. DANIELS and Antonio Peoples, Appellants,

v.UNITED STATES, Appellee.

Nos. 10–CF–737

10–CF–834.

District of Columbia Court of Appeals.

Argued Sept. 21, 2011.Decided Oct. 13, 2011.Publication Ordered Nov. 23, 2011.

Before FISHER, Associate Judge; REID, Associate Judge, Retired; STEADMAN, Senior Judge.

ORDER

PER CURIAM:

On consideration of the motion of the appellee, to publish this court's Memorandum Opinion and Judgment in the above matters filed October 13, 2011, and no opposition having been filed, it is

ORDERED that the motion is granted and the Clerk is directed to cause the decision to be published.

MEMORANDUM OPINION AND JUDGMENT

FISHER, Associate Judge:

On September 24, 2009, appellants Willis Daniels and Antonio Peoples were arrested in connection with a “buy-bust” operation. A jury convicted Mr. Daniels of unlawful possession ¹ and distribution ² of cocaine and Mr. Peoples of unlawful distribution of cocaine. On appeal, Mr. Daniels challenges the trial court's refusal to instruct the jury on entrapment and its imposition of an enhanced sentence for having committed a crime while on release. Mr. Peoples raises multiple issues on appeal, most significantly a claim that the trial court abused its discretion in limiting cross-examination. We reject the challenges of both appellants and affirm their convictions.

I. Factual Background

While working under cover on September 24, 2009, Metropolitan Police Department (MPD) Officer Darrick Wallace approached Mr. Daniels in the area of 6th and Q Streets in Northwest Washington, D.C., a high drug crime area. Officer Wallace asked Mr. Daniels if anyone was selling drugs. After some discussion, Mr. Daniels got in Officer Wallace's car and told him to drive to an apartment complex on 8th Street where, Mr. Daniels said, “they got fat ass twenties” (in other words, the officer explained, “[n]ice size twenty [dollar] rocks of crack cocaine”). On arrival, Officer Wallace gave Mr. Daniels three $20 bills (the serial numbers of which had been previously recorded) and asked him to “get me two 20's.”

Mr. Daniels took the $20 bills and crossed the street to the apartment complex, where he met Mr. Peoples, who was wearing a purple jacket. Mr. Peoples and Mr. Daniels had a brief conversation before walking into the building together. A second undercover officer, Clarence Brooks, watched from a distance of forty feet through the glass-paneled outer door as Mr. Peoples handed “a small object” to Mr. Daniels. Mr. Daniels then returned to Officer Wallace with a rock of cocaine which he broke into three parts, giving two parts to Officer Wallace and keeping one for himself. Officer Wallace asked whether Mr. Daniels had obtained the cocaine from “the dude in the purple jacket,” to which Mr. Daniels replied, “Yes.” Officer Wallace then gave a signal to Officer Brooks, who moved in with two other undercover officers and arrested Mr. Daniels and Mr. Peoples. In searches incident to arrest, officers recovered a small rock of cocaine and one of the pre-recorded $20 bills from Mr. Daniels, and the remaining two pre-recorded $20 bills from Mr. Peoples.

II. Analysis of Mr. Daniels' Arguments

A. Entrapment

“A jury may be instructed on the affirmative defense of entrapment when there is sufficient evidence of government inducement of the crime and a lack of predisposition on the part of the defendant to engage in that criminal conduct.” Minor v. United States, 623 A.2d 1182, 1187 (D.C.1993) (citing Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988)) (emphasis in Minor ). Mr. Daniels claims that the trial court erred by refusing to instruct the jury on the defense of entrapment and by precluding him from arguing that defense during summation. We review the trial court's rulings de novo. Appleton v. United States, 983 A.2d 970, 977 (D.C.2009).

The first element of entrapment, government inducement, requires us to determine whether there was sufficient evidence, viewed in the light most favorable to the appellant, that the government “implanted the criminal design in [the appellant's] mind[.]” Williams v. United States, 342 A.2d 367, 369 (D.C.1975) (citing United States v. Russell, 411 U.S. 423, 436, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973)) (internal quotation marks omitted). Inducement has not occurred where the officer merely “offer[ed] the opportunity to buy or sell drugs....” Minor, 623 A.2d at 1188 (citing Jacobson v. United States, 503 U.S. 540, 549, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992)). Indeed, even “repeated government solicitations do not establish inducement unless the requests are coupled with ‘persuasive overtures' ... [that] moved an otherwise unwilling person to commit a criminal act.” United States v. Hanson, 358 U.S.App.D.C. 69, 75, 339 F.3d 983, 989 (2003) (internal editing, quotation marks, and citation omitted). These “persuasive overtures” must be sufficiently compelling “that a law-abiding citizen's will to obey the law could have been overborne.” United States v. Glover, 332 U.S.App.D.C. 74, 79, 153 F.3d 749, 754 (1998) (internal quotation marks omitted). “Entrapment never exists as a defense unless the accused has been led to do a criminal act by the trickery or undue persuasion of an officer of the law.” Sherman v. United States, 36 A.2d 556, 564 (D.C.1944).

The record here does not show “evidence of inducement beyond the ordinary opportunity to commit a crime and profit thereby.” Glover, 332 U.S.App.D.C. at 80, 153 F.3d at 755. It is uncontested that Officer Wallace initiated the conversation with Mr. Daniels by asking about the availability of cocaine. According to Mr. Daniels, Officer Wallace first asked simply whether Mr. Daniels had “anything.” Mr. Daniels replied that he did not have drugs, asserting that he did not have the money to buy them. As Mr. Daniels began walking away, Officer Wallace called after him saying, “[L]ook here. If you can find some drugs I might make it worth your while.” As Mr. Daniels testified, “That's a different situation. I needed some money anyway.”

At this point, Mr. Daniels testified, he stopped and asked, “[H]ow much money you talking about giving me[?]” Officer Wallace made no specific price inducement, promising vaguely to “make it worth [his] while.” Only after Mr. Daniels had agreed did Officer Wallace give Mr. Daniels $60 to buy $40 worth of cocaine, leaving $20 for Mr. Daniels to keep for himself. Then, Mr. Daniels took the lead. He located the cocaine dealer, conducted the purchase, and conveyed the cocaine to Officer Wallace. This “ready willingness to supply drugs once [the officer] contacted him belies [the appellant's] claim that his will was overborne by incessant government overtures.” Glover, 332 U.S.App.D.C. at 79, 153 F.3d at 754. Although Mr. Daniels may have been encouraged by the opportunity to earn a sales commission, such motivation does not rise to the level of improper government inducement. See United States v. McKinley, 315 U.S.App.D.C. 95, 102, 70 F.3d 1307, 1314 (1995) (“[A]ny reward offered by [the officer] [that] was in the nature of providing appellant with the typical benefit of participating in this type of criminal enterprise ... is not sufficient, by itself, to establish inducement.”); United States v. Diaz–Diaz, 433 F.3d 128, 136 (1st Cir.2005) (“The promise of financial gain, ... even if significant, is insufficient to demonstrate government inducement.”).

Even if there were evidence that Mr. Daniels was improperly induced, that would not suffice. The entrapment defense is intended for the “protect[ion of] an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law.” United States v. Law, 381 U.S.App.D.C. 270, 287, 528 F.3d 888, 905 (2008) (quoting Jacobson, 503 U.S. at 553–54, 112 S.Ct. 1535) (internal quotation marks omitted). “[T]he principal element in the defense of entrapment [i]s the defendant's predisposition to commit the crime.” Russell, 411 U.S. at 433, 93 S.Ct. 1637. “Predisposition focuses on whether the defendant was an ‘unwary innocent’ or, instead, an ‘unwary criminal’ who readily availed himself of the opportunity to perpetrate the crime.” Minor, 623 A.2d at 1188 (citing Mathews, 485 U.S. at 63, 108 S.Ct. 883) (internal quotation marks omitted).

The record here can only be read as showing that Mr. Daniels was predisposed to engage in the criminal conduct. Even if we focus on Mr. Daniels' testimony, we must consider his testimony as a whole,³ and the record simply does not entitle appellant to an instruction on entrapment. See Minor, 623 A.2d at 1188.⁴ Mr. Daniels testified at trial that he had no intention of buying or distributing drugs before Officer Wallace initiated contact with him on that day. But Mr. Daniels also told the court that he had used cocaine for the past ten years or more, including on the day before he was arrested; knew where to buy cocaine; and was familiar with multiple drug dealers in the neighborhood. He further admitted to five previous drug convictions, including three distribution-related offenses. ⁵ Although Officer Wallace initiated the discussion, it was Mr. Daniels who suggested that they drive to 8th Street, because he knew it was a place where one could buy cocaine. Once there, according to Mr. Daniels' testimony, he walked directly to an apartment he had visited before, bought cocaine from the one individual he spoke with inside, returned to Officer Wallace, and completed the sale.

“[A] requested instruction is not appropriate if, as a matter of law, the defendant would not be entitled to the defense.” Mack v. United States, 6 A.3d 1224, 1229 (D.C.2010) (citation and internal quotation marks omitted). Given the negligible evidence of government inducement and the powerful evidence of predisposition, “there was no basis in the evidence for an entrapment instruction and ... the trial court did not err in refusing to give one.” Minor, ...