U.S. v. Anderton

• Decision Date: 09 July 1982
• Docket Number: No. 81-1212,81-1212
• Citation: U.S. v. Anderton, 679 F.2d 1199 (5th Cir. 1982)
• Parties: 10 Fed. R. Evid. Serv. 1652 UNITED STATES of America, Plaintiff-Appellee, v. David ANDERTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1199

679 F.2d 1199

10 Fed. R. Evid. Serv. 1652

UNITED STATES of America, Plaintiff-Appellee, v.David ANDERTON, Defendant-Appellant.

No. 81-1212.

United States Court of Appeals Fifth Circuit.

July 9, 1982.

John A. Brady, Fort Worth, Tex., for defendant-appellant.

John W. Sweeney, Jr., Asst. U. S. Atty., Fort Worth, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before BROWN, GEE and GARWOOD, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

David Anderton appeals his conviction on one count of conspiring to bribe a public official and eleven substantive counts of bribery, in violation of 18 U.S.C. § 201(b)(3)and371.We find little merit to his allegations of trial error and affirm the conviction.

Facts

In a previous conviction, Anderton visited this Court.United States v. Anderton, 629 F.2d 1044(5th Cir.1980).We reversed and remanded his conviction because the trial court failed clearly to advise the jury on the issue of entrapment.Rather than repeat ourselves, we incorporate by reference our earlier statement of facts and invite the reader to consult that opinion.

Issues

Anderton raises three issues.First, he contends that the Court erred in not giving his requested jury instruction on the issue of entrapment.¹His testimony, he declares, established entrapment "as a matter of law" so that the trial court should either have given his requested jury instruction or have granted his second motion for judgment of acquittal.From the premise, we think, the conclusion does not follow.

The Supreme Court, discussing a similar set of facts, affirmed a conviction and rejected the proffered entrapment defense.In Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113(1976), five members of the Court agreed that the defendant's sale to government agents of heroin which he received from a government informer did not violate due process.Quoting United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366(1973), andSorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413(1932), Justice Rehnquist explained, "We ruled out the possibility that the defense of entrapment could ever be based upon governmental misconduct in a case, such as this one, where the predisposition of the defendant to commit the crime was established."425 U.S. at 489, 96 S.Ct. at 1649, 48 L.Ed.2d at 118(Rehnquist, J., plurality op.).Hampton effectively overruled United States v. Bueno, 447 F.2d 903(5th Cir.1971), as we ourselves have recognized.²

In Russell, the Supreme Court sketched the contours of the entrapment defense.Russell had been convicted of the unlawful manufacture and sale of amphetamines.The Ninth Circuit reversed, holding that the actions of an undercover agent who supplied an essential chemical constituted entrapment as a matter of law.Reversing the Ninth Circuit, Justice Rehnquist stated,

(E)ntrapment is a relatively limited defense (rooted) in the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a prescribed offense but was induced to commit them by the government.

411 U.S. at 435, 93 S.Ct. at 1644, 36 L.Ed.2d at 375.He concluded: "It is only when the government's deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play."411 U.S. at 436, 93 S.Ct. at 1645, 36 L.Ed.2d at 376.

This Court has discussed entrapment a score of times.Recently, we stated:

When entrapment is at issue, the focal point of the inquiry is on the predisposition of the defendant.Thus a defendant who wishes to assert an entrapment defense must initially come forward with evidence "that the government's conduct created a substantial risk that the offense would be committed by a person other than one ready to commit it."Once the defendant has carried this burden, the government must, if it is to prevail, prove beyond a reasonable doubt that the defendant was predisposed to commit the crime charged.

United States v. Tobias, 662 F.2d 381, 384(5th Cir.1981), quotingUnited States v. Dickens, 524 F.2d 441, 444(5th Cir.1975), cert. denied, 425 U.S. 994, 96 S.Ct. 2208, 48 L.Ed.2d 819(1976).

In United States v. Webster, 649 F.2d 346(5th Cir.1981)(en banc), we gathered en banc to consider some aspects of the entrapment defense.As Judge Hill, writing for the Court, explained,

(I)t is clear that when entrapment is at issue the focal point of the inquiry is on the predisposition of the defendant ....Once the defendant has carried this burden (of showing that the government's conduct might induce an innocent person to act), the government must, if it is to prevail, prove beyond a reasonable doubt that the defendant was predisposed to commit the crime charged.

649 F.2d at 348-49.

From this review of the entrapment cases, we are obliged to focus not on the government's actions, as Anderton suggests, but on the predisposition of the defendant to commit the crime.If he waited eagerly, ready and willing to violate the law, a criminal in search of a crime, then the government's actions in assisting him to that end, under Hampton and Russell, supra, are irrelevant.

Even if Anderton produced sufficient evidence to carry his burden on entrapment, Webster, supra, the government met its burden and, it seems, convinced the jury.The prosecution introduced taped conversations between Anderton and the agents at their initial meetings.The tapes reveal Anderton's "unbridled enthusiasm" for his new "career".He bragged that he had arranged for bookmaking locations prior to the meeting.He volunteered to begin booking baseball games, since he wanted to get started and football season had not yet opened.He involved several others in the bookmaking process and even solicited another bookmaker to pay protection money ($500 every two weeks) to the officers, of which he retained $200 for handling.Anderton was not above showing off a bit, taking pleasure in explaining to the officer why he preferred to operate two telephones at two different locations.When his wife ran away, Anderton-supposedly so terrorized by Pittman's threats-even called agent Lebredo to ask his help in locating his wife.These facts do not jibe with Anderton's professions of entrapment by coercion.

In the light of this evidence, Anderton's excuse that Pittman threatened and coerced him and that he merely said what Pittman instructed him to say might well have sounded lame to the jury.The jury is entitled to disbelieve the defendant.Obviously it did so.Anderton would have us overturn that finding, but he mistakenly assesses this Court's role.We are not a cruel stepparent, anxious to usurp the jury's proper role, a role that the Sixth Amendment protects.Our review is limited to deciding whether the evidence was sufficient to support the jury's decision.SeeMasciale v. United States, 356 U.S. 386, 388, 78 S.Ct. 827, 828, 2 L.Ed.2d 859, 861(1958), where the Supreme Court held that entrapment was a matter for the jury, not the trial court.See alsoRussell, supra, where the Court affirmed that rule.We have no doubt that the evidence supported the conviction.

Is It Alive Or Is It Memorex?

Anderton next complains of the admission of the taped conversations between himself and agent Lebredo, arguing that the government did not lay the proper predicate.He relies upon the Eighth Circuit case, United States v. McMillan, 508 F.2d 101, 104(8th Cir.1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782(1975), which imposes a seven-prong test for admissibility of a taped conversation.We have considered the McMillan test and found it lacking.Specifically, we have declined to require proof that the conversation "was made voluntarily and in good faith without any kind of inducement."United States v. Biggins, 551 F.2d 64, 66(5th Cir.1977).Recognizing the trial court's discretion in determining whether to allow a recording into evidence, we required only that the prosecution lay a foundation by showing

the competency of the operator, the fidelity of the recording equipment, the absence of material deletions, additions, or alterations in the relevant portions of the recording, and the identification of the relevant speakers.

551 F.2d at 66.The government recited this litany at trial and fulfilled its duty.The motion to strike was properly denied.

Anderton also asserts that the trial judge erred in issuing a limiting instruction to the jury concerning his description of the conversations he had with Pittman.In answering the government's objection on the grounds of hearsay, the judge told the jury: "I am admitting it on the basis for what this witness was relying on, not for the truth of what was being said."He allowed Anderton to relate the substance of his discussions with Pittman but cautioned the jury not to accept Anderton's recital for the truth of the matter.

Although the trial judge may have erred, his technical slip assisted rather than harmed Anderton's defense.The Court permitted the testimony as a statement of a co-conspirator under F.R.Evid. 801(d)(2)(E), which reads:

Statements which are not hearsay.A statement is not hearsay if-

(2) Admission by party-opponent.The statement is offered against a party and is (A) his own statement, in either his individual or a representative capacity or (B) a statement of which he has manifested his adoption or belief in its truth, or (C) a statement by a person authorized by him to make a statement concerning the subject, or (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

That rule applies only to the admission of a statement against a party.It does not avail...