U.S. v. Glover

• Decision Date: 02 March 1999
• Docket Number: No. 96-3130,96-3130
• Parties: UNITED STATES of America, Appellee, v. Fred M. GLOVER, Appellant. District of Columbia Circuit
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 749

153 F.3d 749

332 U.S.App.D.C. 74

UNITED STATES of America, Appellee, v. Fred M. GLOVER, Appellant.

No. 96-3130.

United States Court of Appeals,District of Columbia Circuit.

Argued Nov. 4, 1997.

Decided Sept. 4, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied March 2, 1999.

Appeal from the United States District Court for the District of Columbia (No. 96cr00011-01).

Antoini M. Jones argued the cause for appellant, with whom Joseph L. Gibson, Jr. was on the brief.

Helen M. Bollwerk, Assistant U.S. Attorney, argued the cause for appellee, with whom Mary Lou Leary, U.S. Attorney, John R. Fisher, Thomas C. Black, and Richard L. Edwards, Assistant U.S. Attorneys, were on the brief.

Before: SILBERMAN, WILLIAMS and GARLAND, Circuit Judges.

GARLAND, Circuit Judge:

Defendant Fred Glover was convicted and sentenced on multiple charges of distributing crack cocaine, and of doing so within 1000 feet of a school. Glover claimed at trial that he was merely "play-acting" when he sold crack to a government informant. But he also argued in the alternative that, even if he were guilty of distributing crack, he was "entrapped" by the government into committing the crime. His principal claim on appeal is that the district court erred by failing to give the jury an instruction on his entrapment defense. Glover also contends that: there was insufficient evidence for a jury to conclude he distributed drugs within 1000 feet of a school; he was the victim of sentencing entrapment because the government informant caused the drug transactions to occur within 1000 feet of a school; his sentencing pursuant to a statute that classified his prior offenses as felonies violated the Ex Post Facto Clause of the Constitution; and his counsel provided ineffective assistance at trial. For the reasons set forth below, we reject each of these contentions and affirm the judgment of the district court. ¹

I

In August 1995, Glover was operating a restaurant on Ninth Street, N.W. in Washington, D.C. Stepney Jones came to see Glover at the restaurant. Jones and Glover had played basketball together in the neighborhood in the early 1970s, but they did not know each other well and had not seen each other in years. Glover knew that Jones operated a convenience store in northwest Washington, called "the Corner Store." What Glover did not know was that Jones was working as an informant for the Metropolitan Police Department (MPD) and the Drug Enforcement Agency (DEA).

Claiming that he had recently won some money in the lottery, Jones asked Glover whether he could "get a buy off him." Trial Transcript ("Tr.") at 189. Glover told Jones to "get back with him" and gave Jones his pager number and an identification code to use when paging him. Id. at 189, 200. Jones tried paging Glover with the code several times, but Glover did not initially return the pages.

On August 22, 1995, Jones succeeded in reaching Glover, and asked whether he could purchase cocaine from him. In another phone call later that day, Glover asked whether Jones wanted it "hard or soft," referring to the distinction between crack and powder cocaine. Glover stopped by Jones' convenience store later that day to confirm what Jones wanted. The following day, August 23, Glover telephoned Jones and then came to his store. In the store's basement, in a transaction recorded on videotape, Glover gave Jones 27.68 grams of crack in exchange for $800 provided to Jones by the DEA.

On September 12, 1995, Jones again telephoned Glover and requested drugs. Later that afternoon, Glover came to the store, went to the basement, and sold Jones 58.66 grams of crack for $1600. The DEA again provided the money Jones used and videotaped the transaction.

Finally, on December 20, 1995, Jones had additional telephone conversations with Glover in which he said he wanted to purchase more crack. On December 21, 1995, Glover arrived at Jones' store, gave Jones 58.15 grams of crack at the top of the stairs leading to the basement, and received $1500 in DEA funds when they reached the basement. Id. at 237-40. The portion of the transaction that occurred in the basement was again videotaped. Upon leaving Jones' store, the police arrested Glover and seized the DEA money from him.

At trial, Glover conceded that he had participated in each of the videotaped transactions, but testified that he had done so only as a form of "play-acting." Glover said Jones told him he needed money and that he had a "cousin in Detroit" he wanted to impress with his involvement in the drug trade. Id. at 365-66. Glover testified that he agreed to participate in what he believed to be sham drug transactions in order to "impress" Jones' cousin from Detroit. He said Jones always gave him the substance to be exchanged in advance, but outside of the video camera's range. Glover said he did not know what the substance was, but that on one occasion Jones told him it was soap. Glover also said that he always returned the money to Jones after leaving the basement--with the exception of the final transaction, when the money was found on his person. Glover said he did not know the transactions were being videotaped, but said he believed Jones' cousin was watching them through a crack in the basement wall.

In addition to asserting the "play-acting" defense, Glover also requested that the district court give the jury an entrapment instruction, arguing that he was entitled to such an instruction based on his testimony that Jones induced him to participate in the charged conduct. The trial judge denied the request, relying at first on the ground that Glover had not acknowledged that he committed the crime. Id. at 454. Later, after reviewing this court's decision in United States v. McKinley, 70 F.3d 1307 (D.C.Cir.1995), the judge rested his denial on the ground that "the factual predicate that would trigger the requirement that such an instruction be given is not present in this case." Tr. at 457. The jury subsequently convicted Glover on all charges and this appeal followed.

II

We review the district court's decision to deny Glover's request for an entrapment instruction de novo. United States v. Layeni, 90 F.3d 514, 517 (D.C.Cir.1996). In so doing, we must take Glover's "version of the facts as true." McKinley, 70 F.3d at 1310; see United States v. Borum, 584 F.2d 424, 427 (D.C.Cir.1978). But which version? That he was play-acting? That he never kept any money (except the money the government found on him) and never intended to distribute drugs? Or that he did keep the money and did intend to distribute drugs, but that that intent was formed as the result of government inducement?

In its first decision, the district court essentially assumed the truth of the play-acting version to which Glover testified. It therefore concluded that since Glover said he had not intended to distribute drugs, he could not have been wrongfully induced by the government into so doing. That was a reasonable conclusion. Indeed, it could be said that to have taken the other view would have permitted Glover's attorney to argue to the jury as follows: Even if you believe my client lied to you on the stand when he said he was play-acting, you should still find him not guilty if the government wrongfully induced his drug dealing. And "there is respectable authority for concluding that no legitimate end of the criminal justice system is served by requiring a trial court to entertain such tactics, in the form of an entrapment defense which is at odds with the defendant's own testimony." Mathews v. United States, 485 U.S. 58, 71, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988) (White, J., dissenting).

Respectable as such authority is, however, it was the dissenting rather than majority view in Mathews v. United States. In that case, the Supreme Court began with the premise that defendants are permitted to raise inconsistent defenses, even, the Court said, as inconsistent as arguing in a rape case "that the act did not take place and that the victim consented." Id. at 64, 108 S.Ct. 883 (citing Johnson v. United States, 426 F.2d 651, 656 (D.C.Cir.1970)). It then concluded that, since inconsistent defenses are permitted, and since "a defendant is entitled to an instruction as to any recognized defense for which there exists" sufficient evidence, 485 U.S. at 63, 108 S.Ct. 883, it followed that "even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment," id. at 62, 108 S.Ct. 883.

It could be said that the defendant did not really present inconsistent positions in Mathews. There, the defendant was a Small Business Administration employee who accepted loans from a government contractor who, unbeknownst to him, was cooperating with law enforcement. The government charged that the loans were a gratuity in exchange for an official act. Mathews contended they were personal loans unrelated to any official action. He also contended that the cooperator induced him to accept the loans. If that were all Mathews had argued, the two contentions would not necessarily have constituted inconsistent defenses. Rather, they could be regarded as two elements of a single defense of lack of criminal intent: He did not accept the loans in exchange for an official act; instead, the government had tricked him into accepting loans that he thought were unrelated to his work. ² The same would be true here if Glover had argued only that the government had tricked him into distributing what he thought was soap.

But that was not all that either Mathews or Glover contended. Mathews wanted both to testify that he had no intent to commit a crime, and to have the jury instructed that even if he did have such an intent (i.e., to take the loan in exchange for an official act), it should still find him not guilty if it found the government had entrapped him. Id. at...