U.S. v. Hill

• Decision Date: 02 October 1980
• Docket Number: No. 79-5366,79-5366
• Citation: 626 F.2d 1301
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dean HILL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1301

626 F.2d 1301

UNITED STATES of America, Plaintiff-Appellee, v. Dean HILL, Defendant-Appellant.

No. 79-5366.

United States Court of Appeals Fifth Circuit.

Oct. 2, 1980.

T. Victor Bishop, Fulton, Miss., for defendant-appellant.

H. M. Ray, U. S. Atty., Alfred E. Moreton III, Asst. U. S. Atty., Oxford, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before GOLDBERG, GARZA and REAVLEY, Circuit Judges.

REAVLEY, Circuit Judge:

Dean Hill was convicted in a jury trial below of the knowing interstate transportation and sale of a stolen automobile in violation of 18 U.S.C. §§ 2312, 2313, respectively. He now appeals, arguing that the trial court erred in refusing his requested submission to the jury of an entrapment instruction. We affirm.

Background

The path of Hill's conviction began with his introduction to Mississippi Bureau of Narcotics undercover agent Charles Spillers on January 4, 1978. Agent Spillers, posing as a trafficker in stolen automobiles, had arranged to be introduced to Hill because of information he had obtained indicating that Hill dealt in stolen vehicles. In this initial meeting, which was secretly tape recorded by Agent Spillers, Hill boasted to Spillers of his longtime involvement in procuring and selling stolen vehicles, of the quality of his wares and the reliability of his operation, and of his past success in avoiding prosecution. He agreed, without the slightest hesitation, to furnish stolen cars to Spillers on a regular basis and tried to sell Spillers a stolen 1977 Corvette that he then had available. The tape recording and a transcript thereof were introduced at trial.

There is some discrepancy regarding possible contacts between Spillers and Hill for the period following that initial encounter until mid-May, 1978. ¹ In a series of recorded conversations initiated by Spillers beginning on May 27, however, the two worked out the arrangements for Hill's procurement from Illinois of the stolen vehicle that would become the basis of his arrest and indictment soon after he delivered it to Spillers in Mississippi.

At trial, Hill admitted having driven the car across state lines and having delivered it to Spillers. He maintained, however, that he had done so not knowing that the car was stolen, thus denying the criminal knowledge necessary to a violation of 18 U.S.C. §§ 2312, 2313. Relying on the longstanding rule in this circuit that a defendant may raise entrapment only if he admits commission of the underlying offense, see, e. g., Government of Canal Zone v. Risbrook, 454 F.2d 725 (5th Cir. 1972), the trial court denied Hill's requests for the submission of entrapment instructions. Hill now argues that since he admitted the acts of which he was accused, if not the requisite mens rea, he should have been entitled to the submission of the entrapment defense. We do not reach this controversial issue, ² however, since we find that the record contains insufficient evidence to create a jury question on the issue of entrapment and, therefore, that the trial court did not err in its refusal to submit the question.

Discussion

Entrapment, the government's inducement of the commission of a crime by one not predisposed to commit it, Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 212, 77 L.Ed. 413 (1932), "is an affirmative defense in that the defendant must present some evidence of entrapment before the issue is properly raised." United States v. Gonzales, 606 F.2d 70, 75 (5th Cir. 1979). While there are some variations in the precise formulation of a defendant's burden of production in this regard, United States v. Tate, 554 F.2d 1341, 1342-43 (5th Cir. 1977), both parties here have agreed that the standard was accurately stated by this court in Pierce v. United States, 414 F.2d 163, 168 (5th Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 425 (1969) (footnote omitted):

If there is any evidence in the record that, if believed by the jury, would show that the government's conduct created a substantial risk that the offense would be committed by a person other than one ready to commit it, then, as in all other cases, involving questions of guilt or innocence, the jury must be permitted to resolve the matter. ³

Once such evidence is produced, even if it arises from the prosecution's presentation, the ultimate burden of persuasion is on the government to prove beyond a reasonable doubt that the defendant was predisposed to commit the offense. United States v. Hammond, 598 F.2d 1008, 1011 (5th Cir. 1979). Upon an examination of the record, accepting the testimony most favorable to the defendant as we must, United States v. Wolffs, 594 F.2d 77, 80 (5th Cir. 1979), we conclude that Hill failed to shoulder the threshold burden.

Concededly it was Agent Spillers who first sought out and initiated contact with Hill, and it was Spillers who first proposed the illicit transaction. To raise entrapment, however, a defendant must prove more than simply that the government first solicited him or merely provided the opportunity for the crime. United States v. Costello, 483 F.2d 1366, 1367-68 (5th Cir. 1973); United States v. Bigham, 421 F.2d 1344, 1346 (5th Cir.) cert. denied, 400 U.S. 818, 91 S.Ct. 34, 27 L.Ed.2d 45 (1970); accord, United States v. Burkley, 591 F.2d 903, 911-15 (D.C. Cir. 1978); cert. denied, 440 U.S. 966, 99 S.Ct. 1516, 59 L.Ed.2d 782 (1979); United States v. Christopher, 488 F.2d 849, 850-51 (9th Cir. 1973). While some opinions of this court have expressed the defendant's threshold burden in terms of requiring some evidence only of government inducement, a reading of the facts of those cases reveals that "inducement" represents more than mere suggestion, solicitation, or initiation of contact and, in fact, embodies an element of persuasion or mild coercion functionally equivalent to that denoted in the Pierce formulation (conduct such as would "create a substantial risk that the offense would be committed by a person other than one ready to commit it"). ⁴ See, e. g., United States v. Hammond, 598 F.2d at 1011 (testimony indicated that government had thought of scheme, attempted to "push" it on defendant, and that defendant had not favorably received the government plan); United States v. Timberlake, 559 F.2d 1375, 1379 (5th Cir. 1977) (numerous attempts at setting up illicit deal had failed and witness testified that on at least one occasion defendant had directly rejected government entreaty); United States v. Costello, 483 F.2d at 1368 (upholding trial court's refusal to submit entrapment question, finding no "inducement" where there was no evidence of persuasion or coercion, even though government agent proposed illicit transaction to defendant). ⁵ See also, Sorrells v. United States, 287 U.S. at 441, 53 S.Ct. at 212. After reviewing the record, and particularly the transcriptions of the recorded conversations between Hill and Agent Spillers, ⁶ we find no evidence that Agent Spillers went beyond merely proposing the illicit deal and engaged in any persuasive or coercive tactics in order to recruit Hill. Spillers' role in the transactions appears to have been played out well within the limits of the law.

Hill contends, however, that the five-month hiatus between his initial conversation with Spillers and the conversations in May and June in which he agreed to procure and deliver the stolen automobile involved here demonstrates a pattern of persistent recruitment pressure by Spillers to which Hill finally succumbed. The evidence in the record does not support such an inference, however. In fact, while Agent Spillers testified that Hill had made several offers to supply stolen vehicles during that period, Hill testified that he had not seen Spillers at all and that Spillers had phoned him only about five times during these five months. Hill gave no indication of the content or character of these phone calls. We cannot conclude that this testimony provides any evidence of persistent recruitment pressure sufficient to raise a jury question of entrapment, particularly in light of Hill's apparent eagerness to deal even at the initial meeting, see note 6, supra. See Pierce v. United States, 414 F.2d at 165, 168-69 (finding evidence insufficient to raise jury question of entrapment even though agent phoned defendant 20 to 25 times over a period of months prior to the illicit transaction). ⁷

Hill also contends that the question of entrapment was raised by his testimony that Spillers had told him he was a used car salesman and that "he would not have been in Chicago to pick up the BMW automobile except for the persuasions of Spillers that the business was legitimate." These assertions, however, are not pertinent to the question of entrapment but bear instead on Hill's other defense, specifically, that he lacked the requisite criminal knowledge or intent required by §§ 2312 and 2313. If Hill truly had been led to believe that the car he delivered was not stolen, he would not have been entrapped; he simply would not have committed any offense. See, e. g., United States v. Greenfield, 554 F.2d 179, 183 (5th Cir.), cert. denied, 439 U.S. 860, 99 S.Ct. 178, 58 L.Ed.2d 168 (1978); United States v. Deutsch, 475 F.2d 55, 57 (5th Cir. 1973). Thus, as was true of Hill's other assertions, no entrapment issue is raised on this basis.

Finally, in a slightly different vein, Hill argues that he was entitled to submission of an "entrapment" theory of sorts based on his testimony that it was the government, through Agent Spillers and an alleged cohort, that actually provided him the stolen auto which he later delivered to Spillers. See United States v. Bueno, 447 F.2d 903 (5th Cir.), cert. denied, 411 U.S. 949, 93 S.Ct. 1931, 36 L.Ed.2d 411 (1973) (finding "entrapment" as a matter of law where government agent provided contraband for the sale of which (to another agent) defendant was convicted)....