U.S. v. Anderton

• Decision Date: 03 November 1980
• Docket Number: No. 79-5615,79-5615
• Citation: 629 F.2d 1044
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Post ANDERTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1044

629 F.2d 1044

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

No. 79-5615.

United States Court of Appeals Fifth Circuit.

Nov. 3, 1980.

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

Jimmy L. Tallant, 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, HENDERSON and SAM D. JOHNSON, Circuit Judges.

HENDERSON, Circuit Judge:

The appellant, David Anderton, appeals his conviction of conspiring to bribe a public official and eleven substantive counts of bribery in violation of 18 U.S.C.A. §§ 201(b)(3) and 371. Because the trial court failed to clearly instruct the jury on his entrapment defense, we reverse.

The government's chief witness, Charles Lebredo, a special agent with the Criminal Investigation Division of the Internal Revenue Service, testified that on several occasions (corresponding to the substantive counts) Anderton gave him money with the understanding that he would be warned of pending arrests and protected from investigation. The government played tape recordings of some conversations between the two. According to Lebredo, Robert Pittman arranged his initial meeting with Anderton.

Earlier in 1978 Lebredo had been investigating violations of the federal gambling laws. Don Evans, and investigator with the district attorney's office of Tarrant County (Texas), assisted him. After Lebredo caused Pittman to be prosecuted for failure to pay the federal tax on gambling receipts, Pittman went to Evans for help. Evans, pretending to be a corrupt law enforcement officer, suggested that Pittman bribe Lebredo. Pittman subsequently met Lebredo and paid him.$1000.00 to use his influence to dismiss the charges. After the charges were dropped, Pittman began to pay Lebredo regularly for protection of his bookmaking operation. Needless to say, Pittman did not know Lebredo was an honest officer who was recording all their conversations.

Pittman, a witness for Anderton, testified that after he began paying Lebredo and Evans, they asked if he knew Anderton. He replied that he knew Anderton, but had not seen him for several years. The agents then told him to try to bring Anderton into their "program." Pittman stated that he tried to avoid doing so, but because of continued pressure, he finally sought out Anderton. ¹

When Pittman approached Anderton with the proposition, Anderton expressed surprise that Evans wanted him to set up a bookmaking operation and pay for protection. Pittman suggested that, in view of their ability to make things hard for all concerned, Anderton would be doing them both a favor if he talked to Evans and Lebredo.

Anderton admitted he paid Lebredo $500.00 every other week, and passed on $200.00 every other week for Charlie Norvell, a bookmaker, but testified that he did so only to protect his wife and children. Anderton had been arrested for gambling in 1966. After the case was dismissed the IRS secured a substantial lien for unpaid wagering taxes. Anderton claimed that because he was unable to pay the tax local police periodically jailed him, without cause, and allowed IRS agents to seize his personal property. Both Anderton and his mother testified that late one night a group of seven or eight armed men rushed into the house and ransacked the premises; destroying property and abusing the family. The invaders, who were led by Evans, were a group of local law enforcement officers known as the Metrosquad. By Anderton's account, these experiences caused him to be apprehensive of the IRS and law enforcement officers generally, and fear of injury to his family motivated him to enter "the program."

At the close of evidence, the appellant asked the court to instruct the jury on the meaning of "law enforcement officer" as that term is used in a standard entrapment instruction. The requested instruction pointed out that a law enforcement officer is not only one "actually in the employment of a federal or state governmental agency in the pursuit of such occupation, but may also include any person who acts solely for or in behalf of such actual law enforcement officer ...."

The trial judge did not give this instruction or its substantial equivalent. Instead, he charged the jury that

Where a person has no previous intent or purpose to violate the law, but is induced or persuaded by law enforcement officers or their agents to commit a crime, he is a victim of entrapment, and the law as a matter of policy forbids his conviction in such a case.

.... Nor is it possible for a defendant to be entrapped by a private citizen who is neither a government officer nor an agent of a government officer; inducement to commit a crime from such a private citizen cannot be deemed sufficient to support a claim of entrapment.

.... (I)f the evidence in the case should leave you with a reasonable doubt whether the defendant had the previous intent or purpose to commit an offense of the character charged, apart from the inducement or persuasion of some officer or agent of the government, then it is your duty to find him not guilty.

During its deliberation the jury sent the judge a note asking: "Could Robert Pittman, who contacted Dave Anderton, have been considered acting as an agent of the government official?" He responded: "In answer to your question, you are advised that this is a factual issue to be decided by the jury under the facts heard in court and the Court's instructions as to the law." Appellant's counsel objected to this answer and again requested that the court tender the proposed instruction or one "equivalent or substantially similar." The jury subsequently returned its guilty verdicts.

One may not be convicted of a crime "when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense." Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 212, 77 L.Ed. 413, 417 (1932); see also Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). The problem here is that Pittman, the person who allegedly "implanted" the criminal design, did not intend to cause the appellant's arrest. This obviously bothered the jury, and appears to have confused the government in its argument of this appeal.

If the government plays no part in creating a crime there is no entrapment, regardless of the entreaties of persons not connected with the government: the defense is available only because "it is unthinkable that the government should prosecute those whom it has urged to commit crime(s), (and therefore) our courts refuse to countenance prosecutions which rest on such an unsavory foundation." United States v. Romano, 278 F.2d 202, 204 (2nd Cir. 1960). See also United States v. Garcia, 546 F.2d 613 (5th Cir.), cert. denied, 430 U.S. 958, 97 S.Ct. 1608, 51 L.Ed.2d 810 (1977). To constitute entrapment, it must be shown that the government was involved, directly or indirectly, in the creation of the crime. Garcia, 546 F.2d at 615. "While . . . an entrapment defense (is available) even where the government has neither prior knowledge of nor direct involvement in the scheme to entrap, it still requires a showing that the government and the entrapper have an established relationship such that the government is estopped from denying responsibility." United States v. Perl, 584 F.2d 1316, 1322 n.5 (4th Cir. 1978), cert. denied, 439 U.S. 1130, 99 S.Ct. 1050, 59 L.Ed.2d 92 (1979).

The Supreme Court opinions in entrapment cases concentrate on the predisposition of the defendant to commit the crime, without any dispute of government inducement. However none of them, when discussing entrapment, speaks of government initiation in terms that would limit the defense to direct contacts between the government and the defendant. According to the plurality opinion in Hampton, the defense is available if "governmental activity" implants criminal disposition, 425 U.S. at 490, 96 S.Ct. at 1650, 48 L.Ed.2d at 119; a concurrence speaks of "(o)fficial involvement," 425 U.S. at 493 n.3, 96 S.Ct. at 1651 n.3, 48 L.Ed.2d at 120 n.3. In Russell the Court said: "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. Sherman quoted Sorrells, stating the key was "creative activity" of the officials, and directing fact-finders to determine where the "criminal design originates." 356 U.S. at 371, 78 S.Ct. at 820, 2 L.Ed.2d at 851.

The evidence in this case would sustain the conclusion that government employees first mentioned Anderton and repeatedly pressured Pittman to contact him. All the testimony supports the belief that if the law enforcement officers had not prodded Pittman, Anderton would never have come into contact with Lebredo. Entrapment does not turn on the government's control of every detail of the discussions between Pittman, and the appellant; once the government takes advantage of someone like Pittman, it is fairly charged with responsibility for his actions. ² "The Government cannot make such use of an informer and then claim disassociation through ignorance." Sherman, 356 U.S. at 375, 78 S.Ct. at 822, 2 L.Ed.2d at 852.

Having satisfied ourselves that there is entrapment even though the person implanting the illegal purpose is an ignorant pawn of the government, we must now determine whether the court's instructions adequately stated the parameters of this defense. ³ Viewing the instructions in totality we conclude they did not, but rather misled the jury. See generally Bollenbach v. United States, 326 U.S. 607, 66 S.Ct....