U.S. v. Goodwin

• Decision Date: 12 September 1980
• Docket Number: No. 79-5369,79-5369
• Citation: 625 F.2d 693
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Wayne GOODWIN, Charles William Bullard and Grover Eugene Beaver, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 693

625 F.2d 693

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Wayne GOODWIN, Charles William Bullard and Grover

Eugene Beaver, Defendants-Appellants.

No. 79-5369.

United States Court of Appeals,

Fifth Circuit.

Sept. 12, 1980.

Robyn J. Hermann, Asst. Fed. Pub. Defender, Miami, Fla., for Goodwin.

Thomas G. Sherman, Miami, Fla., for Bullard.

G. David O'Leary, Miami, Fla., for Beaver.

C. Wesley G. Currier, James D. McMaster, Asst. U. S. Attys., Miami, Fla., for the U. S.

Appeals from the United States District Court for the Southern District of Florida.

Before TUTTLE, VANCE and POLITZ, Circuit Judges.

TUTTLE, Circuit Judge:

Three defendants, Goodwin, Beaver and Bullard appeal their convictions in the federal district court. After a jury trial, the three were convicted of conspiracy to possess with intent to distribute marijuana, a violation of 21 U.S.C. § 846. Bullard and Beaver were also convicted of possession with intent to distribute marijuana, a violation of 21 U.S.C. § 841(a)(1).

I

Criminal charges against the defendants arose from an attempt, in January 1979, to smuggle marijuana into the Federal Correctional Institute (FCI), Miami, Florida. Bullard and Goodwin were inmates at FCI. Beaver, Bullard's brother-in-law, was an Air Force sergeant stationed near FCI.

On January 8, 9, and 10, 1979 Goodwin conversed with Robert Whitcomb, a Food Service Supervisor at FCI. Whitcomb, the chief prosecution witness, testified that Goodwin then first solicited his participation in the scheme. Following the initial contacts, Whitcomb notified the authorities, and he allowed the F.B.I. to place a recording device on his person for further talks with Goodwin. A recording of one later conversation on January 11 between Goodwin and Whitcomb shows the developing plan. Whitcomb's role in this scheme was to carry the marijuana into the prison. At least by January 12, Whitcomb met with Bullard to discuss the plan. Whitcomb testified that Bullard too encouraged him to take part in the plan.

Beaver was intended to bring the marijuana to Whitcomb but no source of the marijuana was specified. Those two met outside FCI on January 16 and discussed the plan. Whitcomb testified that Beaver, too, was a willing participant from the start.

By 5 p. m. on January 18, Beaver had the marijuana, and to pass the information, he phoned Whitcomb in a call that was recorded. Later that night at about 10 p. m., Beaver phoned Whitcomb again and arranged a delivery that took place at Whitcomb's home shortly after the call.

The next morning Whitcomb carried the marijuana into FCI. He sent a guard to wake Bullard who did not know the delivery would transpire that morning. On orders from the guards, Bullard went to the kitchen area. There Bullard was arrested as he accepted the marijuana from Whitcomb. The other defendants were subsequently arrested.

The government produced substantial evidence that all three defendants participated to some degree in the smuggling of the marijuana into FCI. On the other hand, the defendants relied on claims of entrapment. Beaver and Bullard testified that prior to meeting with Whitcomb they had no intent to commit the crime and his coaxing induced their commission of the subsequent criminal acts.

From their ensuing convictions the defendants bring to this Court several claims of error.

II

Beaver first questions on appeal the trial judge's denial of his motion for acquittal based on the defense of entrapment.

At trial, Beaver presented evidence of entrapment. He elicited testimony from a psychiatrist who testified that Beaver could not exercise self-control in conforming his conduct to lawful bounds. He sought to show with this testimony that he could be easily manipulated. Beaver testified that he did not want to participate and only because Whitcomb, the government employee and informer, "begged" him to take part in the criminal activity, did he participate in the operation. Moreover, testimony was heard at trial that showed Whitcomb might have been Beaver's source of the marijuana.

On the other hand, parts of Beaver's testimony were rebutted by Whitcomb. Whitcomb testified that Beaver did not warn him of the danger of the criminal acts and did not initially object to the planned criminal activities. Thus, there was evidence to show that Beaver willingly participated in the plan.

Entrapment occurs only when the criminal conduct was the product of the creative activity of law enforcement officials. Sherman v. United States, 356 U.S. 369, 372-73, 78 S.Ct. 819, 820-21, 2 L.Ed.2d 848 (1958). Whether a defendant was entrapped depends upon whether the defendant was predisposed to commit the crime and the extent of the government's provision of aid, incentive, and opportunity. United States v. Bowers, 575 F.2d 499 (5th Cir. 1978). The rationale for the defense rests on the belief that "no one should be convicted of a crime if he was either an innocent seduced by a government agent or one whose resistance was overcome." Pierce v. United States, 414 F.2d 163, 165 (5th Cir. 1969).

To establish entrapment a defendant must first present evidence of a prima facie case by showing that government conduct created "a substantial risk that the offense would be committed by a person other than one ready to commit it." Id. at 168. Once the defendant raises the issue and presents evidence justifying a jury charge on the defense the government bears the burden of persuasion. It must prove beyond a reasonable doubt that the defendant was not entrapped. United States v. Groessel, 440 F.2d 602, 606 (5th Cir. 1970). If the defendant produces overwhelming evidence of entrapment, the burden of production shifts to the government. Id. To create an issue of fact the prosecution must then produce evidence negating entrapment, because the defendant has otherwise established entrapment as a matter of law. The government should then introduce evidence that the defendant was predisposed to commit the crime charged. United States v. Mosley, 496 F.2d 1012, 1014 (5th Cir. 1974). The government may prove this fact by evidence of the defendant's conduct. See United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). Once the government comes forward with sufficient evidence that the defendant was predisposed to commit the crime rather than entrapped, the case may go to the jury. United States v. Gomez-Rojas, 507 F.2d 1213, 1218 (5th Cir. 1975); United States v. Oquendo, 490 F.2d 161, 164 (5th Cir. 1974).

Beaver's defense of entrapment was properly presented to the jury. We need not decide whether his evidence of entrapment had the "overwhelming" character that was present in other cases, Sherman v. United States, 356 U.S. 369, 373, 78 S.Ct. 819, 821, 2 L.Ed.2d 848 (1958) (undisputed testimony of government agent); Henderson v. United States, 261 F.2d 909, 912 (5th Cir. 1958) (on unrebutted testimony by defendant it was "patently clear" that defendant was induced by informers to take part in alleged criminal acts) because evidence was introduced directly conflicting with crucial parts of the evidence offered to show entrapment. Neither during his direct testimony, nor during his rebuttal testimony, did Whitcomb rebut directly Beaver's version of the facts relevant to entrapment. But on cross-examination, Whitcomb testified that he did not tell Beaver details of his personal situation designed to arouse Beaver's sympathy. For example, Whitcomb denied Beaver's allegation that he had told Beaver that he was desperate for cash. In addition, Whitcomb stated that Beaver did not, at their first meeting, originally state that he was opposed to the proposed plan. Finally, Whitcomb stated that Beaver did not warn him of the danger of the smuggling operation. The trial judge, thus, correctly denied Beaver's motion for acquittal based on this defense.

III

Bullard also claims that the prosecutor's final argument contained factual representations that had no basis in the record.

In making his entrapment defense, Bullard relied on cross-examination testimony of Agent Scarborough who indicated that on January 18, Whitcomb had advance knowledge that the marijuana delivery would take place on the morning of the 19th:

Q: You did talk to Warden Cox?

A: Yes, I did.

Q: And what did he tell you about what Whitcomb had told him on the 18th?

A: Well, Warden Cox told me this at 5 a. m. on the morning of the 19th, and the entire episode of the preceding evening had already occurred. He said and I will refer directly to this document that Robert Whitcomb had told him earlier on January the 18th, that he, Whitcomb, had agreed with inmate Bullard to meet Bullard inside the food service storeroom at 6:15 a. m. and deliver the marijuana to Bullard then and there.

I do not know when Whitcomb told this to Warden Cox.

Q: Except that it was on the 18th. Warden Cox knew from the day before?

A: Yes, Whitcomb had told him earlier on the 18th that this

Q: You don't know what time of day?

A: No, I do not.

Bullard believed that this testimony provided a link in his proof that Whitcomb knew of the possibility of delivery before Beaver had the marijuana. Beaver stated that only at about 4 p. m. on the 18th did he have the marijuana which he claimed to find mysteriously in his mailbox. From Whitcomb's "advance knowledge" of the marijuana delivery, the defendant hoped the jury would infer that Whitcomb was either the source of the marijuana or a participant in a broader scheme to entrap the defendants.

But in his closing argument, the prosecutor contradicted this testimony:

(MR. CURRIER:) With respect to that conversation or that comment by Warden Cox to Agent Scarborough that keeps coming up and up and up, they are making hay on that, because there was confusion and a misstatement engendered early in the case. We have been trying and trying to get that straightened out, that caused all the problem, but there never was a...