U.S. v. Evans, s. 90-1491
| Citation | 924 F.2d 714 |
| Decision Date | 11 February 1991 |
| Docket Number | 90-1492,Nos. 90-1491,s. 90-1491 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Dean A. EVANS and Eric K. Johnson, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Richard N. Cox, Asst. U.S. Atty., Danville, Ill., for U.S.
Gary F. Geisler, Geisler, Waks & Geisler, Decatur, Ill., for Dean A. Evans.
Bruce G. Ratcliffe, Urbana, Ill., for Eric K. Johnson.
Before CUMMINGS, POSNER, and FLAUM, Circuit Judges.
The defendants were convicted of federal drug violations by a jury, and sentenced to 97 months (Evans) and 51 months (Johnson) in prison. Johnson's only challenge is to his sentence, which he argues was disproportionately long, compared to Evans's. It is true that he received the shorter sentence, but he was acquitted of two counts of which Evans was convicted; on the one count of which they were both convicted he received 51 months and Evans only 37. The government points out correctly that Johnson does not contend that the district judge misapplied the Sentencing Guidelines, but from this infers incorrectly that we have no jurisdiction over his appeal. Misapplication of the Guidelines is only one basis for the appeal of a criminal sentence. 18 U.S.C. Sec. 3742(a)(2). Another is that the sentence was "imposed in violation of law." Sec. 3742(a)(1). Johnson contends, though inartfully, that the disproportion in sentences violates the Eighth Amendment. If he is right, his sentence was imposed in violation of law. Of course, he is not right, but this is a judgment on the merits, not anything to do with our appellate jurisdiction.
The only point that requires extended discussion is Evans's contention that the district judge should have given the jury an instruction on entrapment. Evans is quite right that if the evidence was such that a rational jury could have inferred that he was entrapped into committing the crime of which he was convicted, he was entitled to present the defense of entrapment to the jury. Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988).
A high school classmate of Evans, who was working as a government informant and who believed Evans to be a drug dealer, approached Evans (who was managing a furniture store) and asked him whether he was interested in buying a large quantity of marijuana. According to the informant, he was, and a month later Evans produced $20,000 in cash to buy one hundred pounds of marijuana--at which point he was arrested. According to Evans's testimony, he was a purchaser of marijuana for personal use, not a dealer, was reluctant to become a dealer, and rebuffed the informant's solicitations the first five times that the informant visited him at the store. (He also testified, contrary to the informant, that the first visit took place three months, not one month, before the arrest.) Finally on the sixth visit he yielded and he admits that from then on he was a willing participant in the scheme to buy a large quantity of marijuana. But he insists that the defense of entrapment does not require that the defendant have been reluctant throughout the entire course of the criminal conduct. He is right. If he was indeed entrapped, it is irrelevant that the entrapment was so effective as to make him not only a willing but an eager participant, United States v. Rodriguez, 858 F.2d 809, 816 (1st Cir.1988), just as, in the converse case, second thoughts following initial enthusiasm do not establish entrapment. United States v. Marren, 890 F.2d 924, 931 (7th Cir.1989).
The weakness in Evans's position is his belief that the defense of entrapment requires only that the defendant have been induced, in the sense of successfully solicited, by a government agent to commit the crime and that he have yielded to the solicitation with reluctance. That is an eccentric formulation. As usually formulated, the defense requires the defendant to prove that he was (1) induced by someone working for or on behalf of the government to commit a crime that he was (2) not predisposed to commit. Mathews v. United States, supra, 485 U.S. at 63, 108 S.Ct. at 886; United States v. Marren, supra, 890 F.2d at 929; United States v. Manzella, 791 F.2d 1263, 1269 (7th Cir.1986). The First Circuit doesn't like the "inducement" part of the formula and has reformulated the defense as the single question whether the government corrupted the defendant. Kadis v. United States, 373 F.2d 370, 373 (1st Cir.1967); see also United States v. Espinal, 757 F.2d 423 (1st Cir.1985). The Supreme Court's decision in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), while giving lip service to the proposition that "the principal element in the defense of entrapment [is] the defendant's predisposition to commit the crime," id. at 433, 93 S.Ct. at 1643, seems to reformulate the defense as the single question whether the defendant was induced. Id. at 433-35, 93 S.Ct. at 1643-45. Most of the recent cases require proof of both inducement--but in the sense merely of successful solicitation--and lack of predisposition. Some cases, it is true, say that "solicitation and inducement are not the same thing." United States v. Espinal, supra, 757 F.2d at 425; United States v. Kelly, 748 F.2d 691, 698 (D.C.Cir.1984). But they mean either that solicitation is not entrapment, United States v. Luce, 726 F.2d 47, 49 (1st Cir.1984), or that solicitation that fails to induce is not inducement. Or else as in Russell they expand "inducement" to make it synonymous with entrapment. Espinal seems to illustrate the first interpretation, Kelly the third.
All this suggests a certain semantic disarray. But when we go behind words to policy, we can see that something like predisposition, in the sense of inordinate willingness to participate in criminal activity,...
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