U.S. v. Clark

• Decision Date: 21 February 1992
• Docket Number: No. 91-5522,91-5522
• Citation: 957 F.2d 248
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roy Lee CLARK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 248

957 F.2d 248

UNITED STATES of America, Plaintiff-Appellee, v. Roy Lee CLARK, Defendant-Appellant.

No. 91-5522.

United States Court of Appeals, Sixth Circuit.

Submitted Nov. 15, 1991.

Decided Feb. 21, 1992.

James R. Dedrick, Asst. U.S. Atty. (briefed), Jerry G. Cunningham, U.S. Atty., Knoxville, Tenn., for plaintiff-appellee.

John T. Milburn Rogers (briefed), Jerry W. Laughlin (briefed), Rogers, Laughlin, Nunnally & Hood, Greeneville, Tenn., for defendant-appellant.

Before KENNEDY and JONES, Circuit Judges, and PECK, Senior Circuit Judge.

NATHANIEL R. JONES, Circuit Judge.

Defendant-appellant Roy Lee Clark appeals his conviction and sentence imposed for the theft of a vehicle belonging to the Federal Bureau of Investigation ("FBI"), and the unlawful conversion with intent to steal a second FBI vehicle, both in violation of 18 U.S.C. § 641 (1988). For the reasons that follow, we affirm Clark's conviction but remand for recalculation of the amount of restitution owed.

I

Clark operated a business in Knox County, Tennessee that bought and sold automobiles and automobile parts. In early 1990, the FBI began an investigation of Clark and requested the assistance of Michael Rector, a Tennessee law enforcement officer and brother-in-law of Clark. Rector, who was already involved in a separate investigation of Clark on state stolen vehicle charges, agreed to work undercover for the FBI.

In a series of conversations secretly audiotaped by Rector, Clark began asking Rector to locate vehicles for him to steal. On January 12, 1990, Clark asked Rector to watch for a Chevrolet Blazer worth stealing. On February 21, 1990, Clark again expressed his interest in obtaining a Blazer and added that he wished to steal a Cadillac Eldorado as well. Clark discussed his theft activities and, at his own suggestion, drove around with Rector looking for suitable vehicles to steal. During their journey, Rector observed Clark steal a 1987 Oldsmobile. At the end of the evening Clark again reminded Rector that he still sought a Blazer and a Cadillac. On February 23, 1990, and again on February 29, Clark reiterated his interest in stealing a Cadillac.

In light of Clark's repeated requests, the FBI purchased a Blazer and a Cadillac. On March 2, 1990, FBI agents parked the Blazer in the parking lot of a Red Roof Inn and told Rector to notify Clark of its location. Rector did so in a recorded conversation that same day.

That evening, FBI agent Don Provonsha observed and videotaped Clark arrive alone at the Red Roof Inn and park next to the Blazer. The FBI later discovered that the car in which Clark arrived was also stolen. Clark forced open the door of the Blazer, then returned to the car in which he had arrived and drove away. Moments later, Clark returned on foot, entered the Blazer, and seconds later drove off with the vehicle. State police later found the Blazer parked in a nearby Holiday Inn parking lot. In a conversation secretly taped by Rector on March 5, 1990, Clark admitted having stolen the Blazer, but stated that he had abandoned it after becoming frightened.

On March 23, 1990, Rector recorded a conversation in which Clark again expressed his interest in stealing a Cadillac and asked Rector to notify him if he saw one. That evening, Rector told Clark that he had seen a Cadillac parked at a nearby motel. Unbeknownst to Clark, the vehicle belonged to the FBI. While en route to the Cadillac, Clark stole a gray Cadillac parked at another motel, which he stated was necessary so as not to have to use his own vehicle to steal the FBI Cadillac. Witnesses later testified that they had seen Clark earlier that evening attempt to steal a 1987 Camaro and a 1988 Corvette. After retrieving the gray Cadillac, Rector and Clark drove to the motel where the FBI Cadillac was parked. Clark forced open the FBI Cadillac but could not start it. Clark then suggested that he and Rector proceed to a nearby restaurant. There Clark entered a 1986 Cadillac that Clark had stolen earlier at a nearby movie theater. On March 26, 1989, Rector recorded a conversation in which Clark asked that Rector continue looking for a Blazer and a Cadillac. After each of the above recordings were made, they were turned over to the FBI, which retained custody of them until the time of trial. Officers arrested Clark soon after the March 26 conversation.

On July 12, 1990, Clark filed a pre-trial motion to suppress evidence of the conversations secretly recorded by Rector. Because Rector was murdered on May 31, 1990, Clark argued that introduction of the recordings would abridge his constitutional right to confront witnesses against him. The court denied the motion. The case proceeded to trial on November 19, 1990.

At trial, Clark raised the defense of entrapment and asked that the government turn over all tapes in its possession concerning Clark and any activities for which Clark had been investigated. Alternately, Clark asked that the court make an in camera inspection of the tapes. The government objected and certified to the court that it had disclosed all tapes relevant to the two counts with which Clark was charged, and that the remaining recorded material was relevant to other cases involving Clark that were currently under investigation, including the murder of Rector. The court denied Clark's request.

On November 21, the jury returned a verdict of guilty on both counts. The court subsequently sentenced Clark to twenty-four months imprisonment on each count, to be served concurrently, with a three-year term of supervised release. The court further imposed a fine of $30,000 and ordered Clark to pay restitution of $117,220.97. Clark then filed the present appeal.

II

Clark's primary contention on appeal is that the evidence offered at trial was insufficient to support his conviction. Specifically, Clark maintains that, given his asserted defense of entrapment, the government failed to prove beyond a reasonable doubt that he was predisposed to commit the acts that form the basis of his conviction. We review challenges to the sufficiency of the evidence to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560 (1979). In determining whether the evidence was insufficient as a matter of law to establish predisposition, "we must view that evidence in the light most favorable to the prosecution and resolve all reasonable inferences therefrom in its favor." United States v. McLernon, 746 F.2d 1098, 1111 (6th Cir.1984).

The defense of entrapment contains 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. Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886-87, 99 L.Ed.2d 54 (1988). The predisposition inquiry "focuses upon whether the defendant was an 'unwary innocent' or instead, an 'unwary criminal' who readily availed himself of the opportunity to perpetrate the crime." Id. This court has recently reaffirmed that, once an issue, a defendant's predisposition must be proven beyond a reasonable doubt, and has defined predisposition as " 'the defendant's state of mind before his initial exposure to government agents.' " United States v. Barger, 931 F.2d 359, 366 (6th Cir.1991) (quoting United States v. Kaminski, 703 F.2d 1004, 1008 (7th Cir.1983)); see also United States v. Lasuita, 752 F.2d 249, 253 (6th Cir.1985). Evidence that government agents merely afforded an opportunity or facilities for the commission of the crime is insufficient to establish lack of predisposition. See Mathews, 485 U.S. at 66, 108 S.Ct. at 888.

The question of entrapment is generally one of fact and, accordingly, left to the sound discretion of the jury. Id. at 63, 108 S.Ct. at 886-87. Where the defendant claims entrapment as a matter of law, " 'the testimony and facts must be undisputed.... Furthermore, the undisputed evidence must demonstrate a 'patently clear' absence of predisposition. If either of these elements is missing, then the predisposition question is for the jury to decide.' " Barger, 931 F.2d at 366 (quoting United States v. Pennell, 737 F.2d 521, 534 (6th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985)).

While tacitly conceding his predisposition to steal the vehicles involved in the instant conviction, Clark argues that the prosecution offered insufficient evidence of his predisposition to steal vehicles generally when initially approached by agent Rector some eighteen months before the crimes at issue here were committed. Clark relies exclusively on the cross-examination testimony of FBI agent Callahan, whose testimony brought out that Clark had no prior criminal record and that Callahan had no knowledge of Clark's initial involvement in the overall criminal enterprise.

Upon review of the record, we do not believe there exists sufficient undisputed evidence to demonstrate a "patently clear" absence of predisposition. See Barger, 931 F.2d at 366. In denying Clark's motion for a directed verdict, the district court stated as follows:

There is evidence here in my opinion of [Clark's] predisposition to commit the type of crime that he committed out of which these charges arose. The man during the course of these conversations admitted that he had on previous occasions stolen cars even before the investigation began, and certainly he was involved in stealing cars, other cars prior to the time that he stole the car, the Blazer in question, and attempted to steal the Cadillac. It's a pretty clear case to me. It's a case for the jury, of course, but I don't have any problem with sending it to the jury.

J.A. at 185. We believe that the court properly submitted the issue of Clark's predisposition to the jury and further find no error in the jury's rejection of Clark's entrapment...