U.S. v. Fischel, No. 81-1453

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before GOLDBERG, WILLIAMS and GARWOOD; JERRE S. WILLIAMS
• Citation: 686 F.2d 1082
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clark N. FISCHEL, Defendant-Appellant.
• Docket Number: No. 81-1453
• Decision Date: 10 September 1982

Page 1082

686 F.2d 1082 UNITED STATES of America, Plaintiff-Appellee,
v.
Clark N. FISCHEL, Defendant-Appellant. No. 81-1453. United States Court of Appeals,
Fifth Circuit. Sept. 10, 1982.

Page 1083

Frank T. Ivy, Austin, Tex., for defendant-appellant.

Sidney Powell, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GOLDBERG, WILLIAMS and GARWOOD, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Clark Fischel was convicted by a jury of aiding and abetting the possession of cocaine with intent to distribute it in violation of 18 U.S.C. § 2. ¹ On appeal, Fischel contends that the jury was instructed incorrectly and that he was prejudiced by the denial of access to a confidential informant before trial. Finding no reversible error, we affirm his conviction.

I.

Fischel's journey to this Court began when he entered into the net of an undercover operation in Austin, Texas. The operation relied in part on Jim Marlin, a former drug dealer in the Austin area who had volunteered to become a Drug Enforcement

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Agency (DEA) informant. Marlin cooperated with the DEA in hopes of gaining leniency. Marlin also received a per diem rate for his work and a bonus for each drug dealer who was eventually indicted. Marlin was teamed with a DEA agent named Dick Braziel.

On January 31, 1981, Marlin and Braziel set up shop in an Austin motel, the Chariot Inn. Marlin had targeted Austinite Bob Ludwig as a drug dealer, and had arranged for Ludwig to come to the Chariot Inn to meet a potential buyer. Unbeknownst to Ludwig, the buyer was an undercover Austin policeman, Russell Schmidt. Shortly before Ludwig was to arrive, Ludwig called Marlin at the Chariot Inn to say that he was bringing Clark Fischel with him. Marlin was acquainted with both Ludwig and Fischel.

Soon thereafter, Ludwig and Fischel arrived at the motel. Ludwig entered carrying a plastic bag containing cocaine. Ludwig began to unpack the goods and placed them on a counter top in the room. Fischel sat down on a bed opposite Schmidt. Marlin introduced Ludwig and Fischel to Schmidt; Schmidt was introduced as "R.L." Ludwig then handed the plastic bag containing cocaine to Schmidt. Marlin had told Ludwig that the buyer would purchase only a small sample-one quarter of an ounce of cocaine. It was evident to Schmidt, however, that the plastic bag handed to him by Ludwig contained considerably more and Schmidt pointed out this fact. Fischel then volunteered that it was an ounce and a half of cocaine.

In the ensuing conversation, Fischel and Schmidt negotiated about the terms of sale. Fischel not only identified the price of cocaine and its quantity, he also urged Schmidt to purchase the entire one and one half ounce bag. Schmidt resisted, saying he wanted a sample before purchasing a large quantity. Fischel maintained that he could procure up to four pounds of cocaine. He repeatedly refused, however, to sell less than the one and one-half ounce bag that he tendered. Ludwig finally piped up that he thought there would be no problem with selling only one quarter of an ounce of cocaine. Ludwig then, with Fischel's approval, cut out one quarter of an ounce and weighed it. Schmidt tried to pay for the cocaine by handing $600.00 to Fischel, but Fischel told him, "No, give the money to Bob." A discussion was had about the possibility of doing more business together later. Fischel promised to call Schmidt later that evening, but no call in fact occurred.

The grand jury indicted Bob Ludwig with possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and Clark Fischel with knowingly aiding and abetting Ludwig's offense. Fischel was arrested and brought to trial. Ludwig became a fugitive and, so far as the record indicates, remains at large. A jury found Fischel guilty of the offense charged.

II.

Fischel asserts error in the judge's failure to instruct the jury on the defense of entrapment. Fischel argues that he presented enough evidence at trial to require the judge to submit an entrapment instruction, and his failure to do so compels reversal. We disagree.

Fischel's trial defense was unusual at the least. The keystone of Fischel's case was that although he participated in the cocaine transaction in essentially the fashion described by the government's witnesses, he did so as a joke. On Fischel's narrative, his involvement in the sale of cocaine was inadvertent. On the day of the sale, Ludwig, an employee of Fischel, requested that Fischel give him a ride because his car was broken down. Fischel reluctantly agreed to do so. On the way to their destination, Ludwig informed Fischel that the purpose of the venture was to complete a sale of cocaine. He described to Fischel the terms of the sale and the quantity of cocaine involved. Fischel had no desire to participate in the transaction, but gave Ludwig a ride because he felt sorry for him.

On arriving at the Chariot Inn, Fischel responded to Officer Schmidt's questions only because he knew the answers. Fischel testified that he was simply playing a practical

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joke and was lying when he asserted that he had access to four pounds of cocaine. On the witness stand, Fischel categorically denied having control over the cocaine, the right to sell it, or knowledge of its sources.

Fischel's story does not fit into the theory of entrapment. The essence of the entrapment defense is that a defendant should not be convicted for having committed a crime, without predisposition, only because of the government's creative activity in inducing the crime. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); United States v. Anderton, 629 F.2d 1044 (5th Cir. 1980). See also Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976) "(W)hen the criminal design originates with the officials of the government, and they implant within the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute," the entrapment defense bars conviction. Sherman v. United States, 356 U.S. at 372, 78 S.Ct. at 820-21; United States v. Anderton, 629 F.2d at 1046.

Fischel argues that he was entrapped because of the following chain of circumstances: (1) The government had set up an undercover drug operation. (2) Jim Marlin, a government agent, induced Ludwig to recruit other drug buyers. (3) Ludwig became the government's unwitting pawn in luring victims to the trap. (4) Fischel, without predisposition to commit a crime, fell into the trap only because he was induced by his feelings of pity for Ludwig. Fischel argues that trial evidence supported each link in this chain and required the judge to allow the jury to consider his entrapment offense.

We recently articulated the burden of production on a defendant seeking an entrapment instruction.

In this circuit, before the judge must instruct the jury on entrapment, a defendant must show (1) lack of predisposition to commit the crime and (2) some governmental involvement and inducement more than just providing the opportunity or facilities to commit the crime.

United States v. Leon, 679 F.2d 534, 538 (5th Cir. 1982) (emphasis in original). See also United States v. Anderton, 679 F.2d 1199, 1201 (5th Cir. 1982); United States v. Andrew, 666 F.2d 915, 922-23 (5th Cir. 1982). Moreover, to raise an entrapment defense the defendant must admit commission of the acts that are the subject of prosecution. United States v. Nicoll, 664 F.2d 1308, 1314 (5th Cir. 1982), cert. denied, --- U.S. ----, 102 S.Ct. 2929, 73 L.Ed.2d 1330 (1982); United States v. Greenfield, 554 F.2d 179, 181-82 (5th Cir. 1977).

Here, we need not consider whether Fischel presented evidence of his lack of predisposition, nor need we consider whether his inherently incredible "practical joker" defense admitted the criminal acts giving rise to prosecution enough to allow him to claim entrapment. We are satisfied that Fischel failed to show the trial court any evidence of governmental inducement of the crime.

Government inducement consists of " 'the creative activity' " of law enforcement officials in spurring an individual to crime. Sherman v. United States, 356 U.S. at 372, 78 S.Ct. at 820-21 (quoting Sorrels v. United States, 287 U.S. at 451, 53 S.Ct. at 216). The inducement need not overpower the defendant's will. "The entrapment defense does not require proof of threats or coercion. It presupposes deceit, not force." United States v. Melchor Moreno, 536 F.2d 1042, 1051 (5th Cir. 1976).

This case presents far less even than deceit. Fischel admitted that he voluntarily took Ludwig to the Chariot Inn knowing that a cocaine deal had been arranged. He also admitted to spontaneous and active participation in the transaction. The only "inducement" under Fischel's claim was his pity for Ludwig that caused him to give Ludwig a ride. Even if we assume that Ludwig was an ignorant pawn whose activity

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is attributable to the government, United States v. Anderton, 629 F.2d at 1047, Ludwig's entreaties to Fischel fell far short of inducement.

No better proof of the absence of inducement can be found than in Fischel's own words. On cross examination, Fischel explained why he gave Ludwig a ride:

Q: Did (Ludwig) in any way threaten you or coerce you to give him a ride over there?

A: He let me use his cassette deck-

Q: Would you answer my question. Did he threaten you or force you to do what you did?

A: Only by inference and feeling sorry for him.

Q: But, did he threaten you or coerce you?

A: He did not physically bodily threaten me, no, sir.

Q: So, in no way did he threaten you, and the reason you did it, is this correct? The reason you did...