U.S. v. Burkley

• Decision Date: 19 March 1979
• Docket Number: Nos. 77-1663,77-1664,s. 77-1663
• Parties: , 3 Fed. R. Evid. Serv. 1649 UNITED STATES of America v. Milford BURKLEY, Appellant (Two cases).
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 903

591 F.2d 903

192 U.S.App.D.C. 294, 3 Fed. R. Evid. Serv. 1649

UNITED STATES of America v. Milford BURKLEY, Appellant (Two cases).

Nos. 77-1663, 77-1664.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 11, 1978.

Decided Dec. 13, 1978.

Certiorari Denied March 19, 1979.

See 99 S.Ct. 1516.

David Heller, ^* with whom Michael E. Geltner, Washington, D. C., (appointed by this Court) and Larry J. Ritchie, Washington, D. C., were on the brief, for appellant.

Reggie B. Walton, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellee.

Before BAZELON, McGOWAN and MacKINNON, Circuit Judges.

Opinion for the court filed by McGOWAN, Circuit Judge:

McGOWAN, Circuit Judge:

In two separate indictments, appellant was charged with distributing heroin in violation of 21 U.S.C. § 841(a) (1976). After a consolidated trial on both charges, in which appellant's only defense was entrapment, the jury returned a verdict of guilty on each. On appeal, appellant presses two claims. First, he argues that the entrapment instruction given by the trial judge was improper because it did not allow the jury to consider evidence of inducement by the government. Second, he contends that consolidation of the two indictments for trial was unduly prejudicial. We conclude that neither of these claims is meritorious, but because the trial record in the District Court and the briefing on appeal reveal confusion about the applicable law on these matters, we state our views at some length.

I

Acting upon information received from an informant, Officer Raymond D'Ambrosio, a Philadelphia police officer working with federal Drug Enforcement Administration personnel in Philadelphia, telephoned appellant in Washington, D. C. on August 10, 1976, and inquired about the possibility of purchasing heroin. There followed several additional telephone calls, some initiated by D'Ambrosio and some by appellant, concerning a possible sale of heroin by appellant to the undercover police officer. In mid-August, 1976, the two men arranged to meet in Washington; however, a sale of heroin was not consummated at this first face-to-face meeting. Finally on September 9, 1976, D'Ambrosio made a second trip to Washington where he paid appellant $1800 for one ounce of thirty-three percent heroin. Over one and one-half months later, on October 28, appellant again approached D'Ambrosio, and the following day he offered to sell D'Ambrosio a large quantity of heroin in Phoenix, Arizona. D'Ambrosio flew to Phoenix on November 8 and, upon receiving seven ounces of ten percent heroin from appellant, immediately placed him under arrest.

Separate one-count federal indictments against appellant were respectively filed in Arizona and in the District of Columbia. After his prosecution in Arizona on the charge arising from the second sale ended in a mistrial, appellant successfully moved to have the Arizona indictment transferred to the District Court here. Over appellant's objection, that court on June 7, 1977, consolidated the Arizona and Washington indictments for trial. At the two-day trial on June 13 and 14, appellant did not deny that the sales charged in the indictment had taken place but contended rather that he should be found not guilty by reason of entrapment. The court read to the jury the entrapment instruction proffered by the Government, taken from the Devitt and Blackmar handbook, ¹ rather than the "red book" instruction formulated by the Bar Association of the District of Columbia, ² which had been requested by the defense. Appellant was convicted on both counts and was sentenced to consecutive terms of five years on each count.

II

Before explaining why we believe that both the instruction given at trial and the instruction requested by the defense are acceptable summations of the federal law of entrapment, we think it useful to examine in some detail the evidentiary posture of this case as it proceeded through trial. The case is almost a prototypical example of entrapment cases in the federal courts, involving as it did drug offenses, sales made to an undercover police officer, and use of an informant; ³ indeed, the only respect in which the case before us is unlike the usual entrapment case is that the appellant here was apparently solicited by the undercover officer directly, rather than by the informant. ⁴ Moreover, most of the major issues which the federal appellate courts have found it necessary to address in entrapment cases were present, actually or potentially, in the case before us, including the showing which must be made by the defendant in order to place the entrapment defense before the jury, ⁵ the relevance of the government agent's behavior, ⁶ the respective evidentiary burdens on the defense and on the prosecution, ⁷ and the type of evidence which may be employed by each side in attempting to sustain its burden. ⁸ Finally, as one would expect to be true owing to the very nature of a claim of entrapment, this was the only defense argued to the jury. ⁹ Thus, the record before us is unencumbered by additional or extraneous issues, and from the outset of the trial the question of entrapment received the full attention of the court, the jury, and counsel for the Government and for the defense.

The Government's case-in-chief consisted of testimony from D'Ambrosio, DEA agents who witnessed the sales charged in the indictments, and DEA forensic chemists who analyzed the substances sold to D'Ambrosio, as well as several exhibits. On cross-examination of D'Ambrosio, appellant's counsel established that the informant in the case had been paid by the DEA for his cooperation and had not yet been tried on a charge against him in Philadelphia for which he had been arrested just prior to the time he gave appellant's name to DEA officials. Appellant's counsel also questioned D'Ambrosio at length about statements the officer admitted making to appellant which might be interpreted as inducements or pressures upon appellant to make the sales. ¹⁰

After the Government concluded its case-in-chief, the court denied appellant's motion for a judgment of acquittal but did rule that, were the case to go to the jury at that point, an instruction on entrapment would be warranted. Tr. (June 13) at 125. The court indicated that, in his cross-examination of D'Ambrosio, appellant's counsel had come forward with sufficient evidence of inducement to preclude a ruling that the entrapment defense failed as a matter of law; rather, whether appellant was a victim of entrapment was a question for the jury to decide.

The only witnesses called by the defense were the informant, who was examined as a hostile witness, and appellant's father, who testified that he had allowed the informant to stay in his home for several months and had asked him to leave when it was suspected that he had stolen some coins and other items. In questioning the informant, appellant's counsel sought to cast doubt on his character and thus on his claim that appellant was a "lieutenant" in the heroin trade. Tr. (June 13) at 165.

At the close of the defense evidence, the court reiterated its conclusion that "there is enough evidence to justify at least the instruction on entrapment," Tr. (June 13) at 186. The Government thereupon announced that it would present rebuttal evidence that appellant had distributed heroin on occasions other than those charged in the indictments, but, because of immunity problems, the Government in the end decided not to present these additional witnesses. Tr. (June 13) at 186-93.

In its closing argument, the defense again conceded, as it had throughout the trial, that the only issue in the case was whether the appellant had been entrapped. Tr. (June 14) at 9. Appellant's counsel argued that the informant's motive and D'Ambrosio's interaction with appellant indicated that appellant had been "induced" and was not "predisposed" to make the sales, leaving it to the court to define the meaning and relevance of these terms. The prosecution, contrarily, argued that the ease with which appellant obtained heroin, the high quality of the drug he obtained, the informant's testimony that appellant was a "lieutenant" in heroin dealing, and appellant's reinitiation of contact with D'Ambrosio after the first sale in September supported the conclusion that appellant was predisposed to make the sales charged in the indictment.

III

Thus it appears that throughout the trial the major focus of the defense was on the motive, actions, and statements of the government agents involved, while the prosecution focused on the behavior of appellant. Similarly, on this appeal, appellant argues that, in deciding whether there has been entrapment, the jury must be instructed to consider whether the defendant was "induced" by the government to commit the crime, while appellee argues that the ultimate question before the jury in an entrapment case is whether the defendant was "predisposed" to commit the crime. We think that a large measure of the disagreement between appellant and appellee is a matter of semantics, resulting particularly from the ambiguity of the term "inducement" and confusion over who bears the burden of proving or disproving the elements of entrapment.

A.

The Supreme Court has written three major opinions on the defense of entrapment. In each the Court has consistently explained that the ultimate fact to be determined by the jury is whether the defendant was "predisposed" to commit the crime with which he is charged. The most recent of these decisions is United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). In Russell, the Court described at some length the history of the entrapment defense in the federal courts, and we need not repeat that description here. Suffice it to say that throughout this history a significant minority...