U.S. v. Blackman

• Decision Date: 06 December 1991
• Docket Number: No. 89-3582,89-3582
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John L. BLACKMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 420

950 F.2d 420

UNITED STATES of America, Plaintiff-Appellee, v. John L. BLACKMAN, Defendant-Appellant.

No. 89-3582.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 13, 1991.

Decided Dec. 6, 1991.

Andrew B. Baker, Jr., Asst. U.S. Atty., Office of U.S. Atty., Dyer, Ind., David H. Miller, Asst. U.S. Atty., Office of U.S. Atty., Fort Wayne, Ind., argued, for plaintiff-appellee.

Suzanne Philbrick, Chesterton, Ind., argued, for defendant-appellant.

Before POSNER, FLAUM and MANION, Circuit Judges.

MANION, Circuit Judge.

A jury found the appellant, John L. Blackman, guilty on two counts of distribution of narcotics in violation of 21 U.S.C. § 841(a)(1). The district court judge entered judgment on Blackman's convictions, sentenced him to 60 months of incarceration on each distribution count to run concurrently, and fined him $10,000 on one count. In this appeal, Blackman requests that we reverse his conviction or, alternatively, vacate the $10,000 fine. For the reasons set forth in this opinion, we affirm the conviction and the fine.

I. Background Facts

At Blackman's trial, the government chiefly relied on the testimony of Ken Arthur, a police informant who had known Blackman for two and a half years. During the course of their acquaintance, Arthur had used cocaine with Blackman and had seen Blackman sell cocaine to others. In May of 1988, Arthur revealed information about Blackman to the Allen County Police Department, which had also received information regarding the defendant's activities from Crime Stoppers. In response to this information, Officer Scott Huffine formulated a plan to investigate Blackman using Arthur as the informant.

Sometime prior to September 9, 1988, Arthur contacted Blackman to purchase drugs from him. At that time, Blackman agreed to sell cocaine to Arthur, but Blackman questioned whether Arthur was working for the police. Arthur insisted that he was not connected with the police and used cocaine with Blackman to allay Blackman's suspicions. On September 9, 1988, Blackman sold Arthur 1/8 of an ounce of cocaine for $225.00. On November 17, 1988, Blackman sold Arthur 1/8 of an ounce of cocaine for $200.00. On November 28, 1988, Blackman sold Arthur one hundred hits of LSD for $300.00. The members of the Federal Drug Task Force recorded each of these three sales with electronic surveillance equipment that Arthur carried.

Blackman presented an entrapment defense, testifying that he had sold drugs only to Arthur, only on the occasions mentioned in the indictment, and only after Arthur had pressured him. The government, however, presented rebuttal evidence on Blackman's predisposition. The government entered into evidence a black notebook that belonged to the defendant. Lieutenant Ralph West of the Allen County Police Department Narcotics Division testified that, based on his 14 years of experience in the narcotics division, he believed the notebook contained a record of narcotics and gambling debts. In addition, Arthur testified that Blackman had told him the book contained a record of people who owed Blackman money for narcotics or gambling debts and that he had seen Blackman make entries into the notebook after selling drugs.

The name "Scott L." appeared in the notebook with "$2,300" beside it. Although Blackman admitted knowing a Scott Larsh, he denied knowing who "Scott L." was and denied that he ever sold drugs to Scott Larsh. Scott Larsh, however, testified that he had known the defendant for a couple of years preceding the trial, that he bought drugs from the defendant during that period and that he still owed the defendant for his latest purchase.

The court gave an entrapment instruction to the jury. After deliberating, the jury found the defendant guilty on two counts of narcotics distribution.

At sentencing, the district court judge considered a Presentence Investigation Report prepared by the Probation Department and an addendum discussing the objections raised by Blackman. The district court judge sentenced Blackman to 60 months on two counts of distribution of narcotics to run concurrently. Based on both Blackman's assets and also his ability to earn income, the district court judge fined Blackman $10,000 on one count.

Blackman raises three issues on appeal. First, he maintains that the evidence at trial revealed that he was entrapped as a matter of law. Second, he maintains that the district court fined him $10,000 based on information that was clearly erroneous. Third, even if the information was not clearly erroneous, Blackman believes the district court should have offset the fine by the $18,000 seized from the defendant pursuant to a warrant the day of his arrest.

II. Analysis

A. Entrapment

Blackman's argument that he was entrapped as a matter of law fails. Under the law in this circuit, the government met its burden, the jury weighed the evidence, and the testimony of the government's witnesses was not incredible as a matter of law.

At Blackman's trial Blackman raised the entrapment defense and supported it by his own testimony that he had sold drugs only to Arthur and only after Arthur badgered him. The government then offered evidence contradicting Blackman's testimony. The defense of entrapment raises a question of fact for the jury. United States v. Fusko, 869 F.2d 1048, 1051 (7th Cir.1989) (citing Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988)); United States v. Lazcano, 881 F.2d 402, 406 (7th Cir.1989). Therefore, the court gave the jury an entrapment instruction, but the jury rejected entrapment as a defense and convicted Blackman. Nevertheless, apparently unable to find a better-founded challenge to the proceedings below, Blackman has chosen to argue before this court that the evidence at trial established entrapment as a matter of law. Blackman's argument would succeed only if the government failed to provide sufficient evidence for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was not entrapped. See United States v. Carrasco, 887 F.2d 794, 814 (7th Cir.1989) (citations omitted) (defendant who relied on lack of predisposition to establish entrapment could establish entrapment as a matter of law only if lack of predisposition was apparent from the uncontradicted evidence).

This court has set forth the principles governing the defense of entrapment in numerous cases. Entrapment has two related elements: (1) government inducement of the crime and (2) a lack of predisposition on the part of the defendant to engage in the criminal conduct. Fusko, 869 F.2d at 1051.

A defendant who wishes to assert the entrapment defense must produce not only evidence of the government's inducement, but also evidence of his own lack of predisposition. Once this has been accomplished, the burden shifts to the government to prove beyond a reasonable doubt that the defendant was in fact predisposed or that there was no government inducement. United States v. Fusko, 869 F.2d 1048, 1052 (7th Cir.1989); United States v. Hawkins, 823 F.2d 1020, 1024 (7th Cir.1987); United States v. Perez-Leon, 757 F.2d 866, 871 (7th Cir.), cert. denied [sub nom., Gonzalez v. United States], 474 U.S. 831, 106 S.Ct. 99, 88 L.Ed.2d 80 (1985); United States v. Gunter, 741 F.2d 151, 153 (7th Cir.1984).

United States v. Rivera-Espinoza, 905 F.2d 156, 158 (7th Cir.1989) (emphasis added). Therefore, while the defendant must present evidence of both elements, the government can defeat the entrapment defense by proving beyond a reasonable doubt either the absence of government inducement or the defendant's predisposition. Where there is sufficient evidence to establish that the defendant possessed the requisite predisposition, the entrapment defense is properly rejected without a separate inquiry into government inducement. Carrasco, 887 F.2d at 816 n. 29 (citing Perez-Leon, 757 F.2d at 871-72).

A predisposed defendant is one who is ready and willing to commit the offense. Id. at 814. Five factors guide the court in assessing the evidence on the defendant's predisposition:

"(1) the character or reputation of the defendant; (2) whether the suggestion of criminal activity was originally made by the government; (3) whether the defendant was engaged in criminal activity for profit; (4) whether the defendant evidenced reluctance to commit the offense, overcome by government persuasion; and (5) the nature of the inducement or persuasion offered by the government."

Id. at 814 (quoting Fusko, 869 F.2d at 1052).

In his appeal, Blackman focuses on evidence tending to establish the five predisposition factors. First, Blackman points to the testimony of several witnesses regarding his good reputation. Second, Blackman reminds this court that Arthur requested the drugs. Third, Blackman maintains that he did not profit from the sales for which he was indicted. Fourth, Blackman offers his own disputed testimony that Arthur pursued Blackman relentlessly before Blackman made the sales to Arthur. Fifth, Blackman complains that the government persuaded him to sell drugs by promoting the betrayal of a friendship.

To assess the defendant's challenge, we must view the evidence in the light most favorable to the government and must affirm the conviction if we find that a rational trier of fact could have found the requisite predisposition beyond a reasonable doubt. Carrasco, 887 F.2d at 814 (citing Perez-Leon, 757 F.2d at 871). We find that the government produced sufficient evidence at trial that a rational trier of fact could have found beyond a reasonable doubt that Blackman was predisposed to distribute narcotics. First, Arthur testified that Blackman had sold him drugs prior to September 1988; that Arthur had been present when the defendant sold drugs to others before September 1988; and that Blackman was never reluctant to sell him drugs. Second, Larsh testified that Blackman had sold him drugs prior to September 1988 and...