U.S. v. Cecil, 95-3409

• Decision Date: 25 September 1996
• Docket Number: No. 95-3409,95-3409
• Citation: 96 F.3d 1344
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerald T. CECIL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1344

96 F.3d 1344

UNITED STATES of America, Plaintiff-Appellee, v. Gerald T. CECIL, Defendant-Appellant.

No. 95-3409.

United States Court of Appeals, Tenth Circuit.

Sept. 25, 1996.

Jackie N. Williams, United States Attorney, Stephen K. Lester, Assistant United States Attorney, Wichita, KS, for Plaintiff-Appellee.

Laura B. Shaneyfelt, Focht, Hughey & Calvert, L.L.C., Wichita, KS, for Defendant-Appellant.

Before TACHA, BALDOCK and BRORBY, Circuit Judges. ^*

BALDOCK, Circuit Judge.

Defendant Gerald T. Cecil sold a kilogram of cocaine to a confidential informant working for the government. The government indicted Defendant for distributing a kilogram of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. At trial, Defendant argued that he was entrapped. The district court instructed the jury on the defense of entrapment and the jury convicted Defendant. On appeal from his conviction, Defendant claims the district court erroneously refused to instruct the jury that the government had to prove that Defendant was predisposed to sell cocaine at the time he was contacted by the confidential informant. Defendant also asserts the district court, in response to a question from the jury, misinformed the jury that the government had to prove that Defendant was predisposed to distribute cocaine, but did not have to prove that Defendant was predisposed to distribute a kilogram of cocaine. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I.

At trial, the district court delivered the following lengthy instruction to the jury regarding the entrapment defense:

Defendant Cecil asserts that he was the victim of entrapment as to the offense charged in the indictment.

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 the victim of entrapment, and the law as a matter of policy forbids his conviction in such a case.

On the other hand, where a person already has the readiness and willingness to break the law, the mere fact that government agents provide what appears to be a favorable opportunity is not entrapment. For example, it is not entrapment for a government agent to pretend to be someone else and to offer, either directly or through an informer or other decoy, to engage in an unlawful transaction.

If, then, you should find beyond a reasonable doubt from the evidence in the case that, before anything at all occurred respecting the alleged offense involved in this case, the defendant was predisposed to commit a crime such as charged here, whenever the opportunity was afforded, and that government officers or their agents did no more than offer the opportunity, then you should find defendant Cecil was not the victim of entrapment.

On the other hand, if the evidence should leave you with a reasonable doubt whether defendant had the predisposition 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 defendant Cecil not guilty.

Evidence of predisposition may consist of a showing of a person's desire for profit, his eagerness to participate in the transaction, and/or his ready response, if any, to the government's inducement offers.

Thus, if you find from the evidence that defendant Cecil was induced to commit the crime addressed in the indictment, and at the time was not predisposed to otherwise commit the crime, you must acquit the defendant.

The United States denies defendant Cecil's contentions of fact, and claims that his involvement was as set forth in the indictment.

The burden is on the government to prove beyond a reasonable doubt that the defendant was not entrapped.

Vol. I, Doc. 61, Instruction No. 15 (emphasis added). During deliberations, the jury submitted the following written question to the court:

Question on Instruction No. 15 "predisposition to commit an offense of the character charged" Does the above wording mean the predisposition to commit an offense of a "kilo" buy?

Vol. III, No. 2. Defendant asked the district court to give this instruction in response to the jury's question:

In response to your question whether the government must prove that the defendant Cecil was predisposed to distribute a kilogram of cocaine, the court instructs you that "predisposition" is defined as a defendant's inclination to engage in the illegal activity for which he has been charged, i.e. that he is ready and willing to commit the crime. It focuses on defendant's state of mind before government agents suggest that he commit a crime. Predisposition may be inferred from a defendant's history of involvement in the type of criminal activity for which he has been charged, combined with his ready response to the inducement offer. The government has the burden of proof to prove beyond a reasonable doubt that the defendant lacked predisposition to commit the crime charged at the time that the government agent (Jeff Schoenthaler) began his efforts to engage the defendant in criminal conduct.

Vol. I, Doc. 58. After argument from counsel, the court rejected Defendant's suggested instruction and sent the following answer to the jury: "No." The jury convicted Defendant.

II.

On appeal from his conviction, Defendant argues the district court erroneously instructed the jury and misstated the law when it answered the jury's question. Specifically, Defendant contends that the district court erred by: (1) "refusing to instruct the jury that the government must prove the defendant was predisposed to sell cocaine at the time that the informant began contacting the defendant;" (2) refusing to deliver his suggested instruction to the jury; and (3) responding "No" to the jury's question whether the government had to prove that Defendant was predisposed to distribute a kilogram of cocaine. We address Defendant's arguments in turn.

A.

Defendant first asserts that the district court erred by refusing to instruct the jury that the government's burden required it to prove that Defendant was predisposed to sell cocaine when the confidential informant first contacted him. Defendant argues that Instruction No. 15 was deficient as a matter of law because it "did not address, in any meaningful manner, the important issue of timing of predisposition." Aplt. Br. at 11. According to Defendant, "not one reference in the instruction informs the jury that the predisposition must have been in place at the time the informant first began contacting the defendant." Id. Consequently, Defendant urges us to reverse his conviction and remand for a new trial.

We review jury instructions de novo to determine whether, as a whole, the instructions correctly state the governing law and provide the jury with an ample understanding of the issues and applicable standards. E.g., United States v. de Francisco-Lopez, 939 F.2d 1405, 1409 (10th Cir.1991). The instructions must cover the issues presented by the evidence and accurately state the law. United States v. Davis, 953 F.2d 1482, 1492 (10th Cir.), cert. denied, 504 U.S. 945, 112 S.Ct. 2286, 119 L.Ed.2d 210 (1992). We will reverse only when the failure to give an instruction is prejudicial in view of the entire record. United States v. Martin, 18 F.3d 1515, 1519 (10th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 187, 130 L.Ed.2d 121 (1994).

The Supreme Court has distilled the principles governing the defense of entrapment in the following passage:

[T]here can be no dispute that the Government may use undercover agents to enforce the law. It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises.

In their zeal to enforce the law, however, Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute. Where the Government has induced an individual to break the law and the defense of entrapment is at issue ... the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.

Jacobson v. United States, 503 U.S. 540, 548-49, 112 S.Ct. 1535, 1540-41, 118 L.Ed.2d 174 (1992) (quotations and citations omitted) (emphasis added); see also United States v. Beal, 961 F.2d 1512, 1515-16 (10th Cir.1992); United States v. Ortiz, 804 F.2d 1161, 1164-65 (10th Cir.1986).

Viewing Instruction No. 15 against this authoritative statement of the entrapment defense, we conclude the challenged instruction neither misstated the law nor failed to provide the jury with an ample understanding of the applicable standards. Instruction No. 15 did not, as Defendant urges, fail to "address, in any meaningful manner, the important issue of timing of predisposition." Aplt. Br. at 11. Instruction No. 15 cohered with the Supreme Court's statement that it is the prosecution's burden to "prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents." Jacobson, 503 U.S. at 549, 112 S.Ct. at 1540. That is, Instruction No. 15 informed the jury at least three separate times of the importance of the timing of the predisposition: "[w]here a person has no previous intent or purpose to violate the law ... he is a victim of entrapment," and "[i]f, then, you should find beyond a reasonable doubt from the evidence in the case that, before anything at all occurred respecting the alleged offense involved in this case, the defendant was predisposed to commit a crime such as charged here ... then you should find defendant Cecil was not the victim of entrapment," and finally, ...