U.S. v. Leroux, 83-2299

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation738 F.2d 943
Docket NumberNo. 83-2299,83-2299
Parties15 Fed. R. Evid. Serv. 2084 UNITED STATES of America, Appellee, v. James Ervin LEROUX, Appellant.
Decision Date08 August 1984

London, Greenberg & Pleban, Norman S. London, Lee T. Lawless, Lawrence J. Fleming, St. Louis, Mo., for appellant.

Thomas E. Dittmeier, U.S. Atty., Charles A. Shaw, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before ROSS, Circuit Judge, HENLEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.

HENLEY, Senior Circuit Judge.

James Ervin Leroux appeals from his conviction for mail fraud under 18 U.S.C. Sec. 1341 on account of his role in a scheme to defraud an insurance company. He urges reversal contending that: (1) he was entrapped as a matter of law; (2) the government's participation and conduct was so outrageous and fundamentally unfair that he was deprived of due process; (3) the statements of a codefendant were improperly admitted; and (4) the evidence is insufficient to sustain the jury verdict. We affirm the judgment of the district court. 1


From July, 1980 until March, 1982 the Federal Bureau of Investigation engaged in an undercover "sting" operation in Southeast Missouri targeted primarily at automobile theft. Special Agent Roy Christopher headed the operation in which stolen automobiles were purchased through a fictitious company known as LeBlanc Auto Sales.

During the course of the undercover operation, Agent Christopher had frequent contact with Willard Kenneth O'Dell, Leroux's codefendant. 2 Agent Christopher purchased several stolen vehicles from O'Dell and provided O'Dell with license plates and safety inspection stickers as payment for the automobiles. The meetings and telephone conversations between the two were recorded by Christopher and seven of these tapes were played for the jury. 3

On December 5, 1980 Christopher and O'Dell met at O'Dell's residence. Christopher noticed a Caterpillar Traxcavator equipped with bulldozer parked in the yard and asked O'Dell if he owned it. O'Dell responded that he did not, but that it was for sale and that the owner would take $1500.00 for it. Christopher indicated that he might be interested in purchasing it. The two discussed the fact that it might need some repairs and then went on to discuss other possible purchases.

The next meeting where the subject of the Caterpillar arose took place on December 8, 1980. O'Dell advised Christopher that the Caterpillar had "blown a rod" while he was using it and reduced the price to $500.00. Christopher asked if the price included other equipment and O'Dell responded that it did not since the owner only had insurance on the Caterpillar. O'Dell stated that the owner was a "local boy" who would give Christopher a week and a half before reporting it as stolen. 4

The next morning Christopher called O'Dell and asked if he would have to provide the transportation to remove the Caterpillar. O'Dell responded affirmatively, and again assured Christopher of the availability and terms of the sale and stated that he would call the owner to confirm the arrangements.

On December 11, 1980 Christopher called O'Dell who stated that the Caterpillar would not be ready until the following Tuesday or Wednesday. Later that day O'Dell called Christopher and related that he had spoken to the owner and that the deal could not go through until Wednesday or Thursday since the owner needed to use the machine to dig up some road tiles. O'Dell stated that the owner would not report it as stolen for a week or so and that the owner would help load it. Finally, O'Dell agreed to take ten federal car safety stickers in exchange for the equipment.

The next day, December 12, Christopher gave O'Dell the ten stickers. The two discussed the Caterpillar's mechanical problems and further discussed when they would load the equipment. On December 17 the two confirmed that Christopher would pick up the Caterpillar the next day.

As planned, Christopher met O'Dell at his residence on December 18. Leroux and Leroux's employee, Chester Griffin, were also present, and the four subsequently loaded the Caterpillar onto Christopher's trailer. Leroux told Christopher that he would not report the Caterpillar stolen until December 29, 1980, and that "it would be like he would be coming back from the Christmas vacation and find his equipment stolen." Christopher departed with the Caterpillar and followed O'Dell, Leroux and Griffin in a detour around town to avoid being seen and then proceeded toward the Arkansas border. After a few miles, they stopped and Leroux gave Christopher directions. Christopher asked Leroux who he should say was the owner in case he got stopped and Leroux replied, "Tell them it was Shorty Leroux." Leroux also told him to say that Christopher had permission to use the bulldozer. 5 Chester Griffin testified that he had worked for Leroux for approximately twenty years and that Leroux is commonly called "Shorty" or "Short." Griffin confirmed that he, Leroux, O'Dell and a truck driver loaded the equipment in December of 1980.

Leroux reported the bulldozer stolen to the county sheriff on January 2, 1981. Further, Leroux reported the "theft" to his insurer which set in motion the four separate mailings concerning his claim. The trial jury rejected the defense of entrapment and convicted him of four counts of mail fraud on the basis of his participation in the insurance fraud. He was sentenced to six months imprisonment on one of the counts and received suspended sentences with a total of five years probation on the remaining counts. Restitution in the amount of $5,975.00 was made a condition of probation.


Leroux contends that the evidence established entrapment as a matter of law. He asserts that any dealings over the Caterpillar originated with the government agent, that Agent Christopher pursued the matter in repeated telephone calls and meetings, and that Christopher provided the means of removing the equipment.

In order to demonstrate entrapment as a matter of law,

the evidence must clearly have indicated that a government agent originated the criminal design; that the agent implanted in the mind of an innocent person the disposition to commit the offense; and that the defendant then committed the criminal act at the urging of the government agent.

United States v. Shaw, 570 F.2d 770, 772 (8th Cir.1978); United States v. Lard, 734 F.2d 1290 at 1293-1294 (8th Cir.1984). In determining this issue, we must view the evidence in the light most favorable to the government. United States v. French, 683 F.2d 1189, 1192 (8th Cir.), cert. denied, 459 U.S. 972, 103 S.Ct. 304, 74 L.Ed.2d 284 (1982). Where there is conflicting evidence, "[t]he question of entrapment is ordinarily for the jury." Holmes v. United States, 709 F.2d 19, 20 (8th Cir.1983); Shaw, 570 F.2d at 772.

Contrary to Leroux's contentions, we seriously doubt whether the issue of entrapment should even have been submitted to the jury in this case. The clear majority rule in the federal courts is that the entrapment defense does not extend to inducement by a private citizen. See United States v. Beverly, 723 F.2d 11, 12 (3d Cir.1983); United States v. Lee, 694 F.2d 649, 654 (11th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 1779, 76 L.Ed.2d 350 (1983); United States v. Mers, 701 F.2d 1321, 1340 (11th Cir.) (rejects vicarious entrapment theory), cert. denied, --- U.S. ----, 104 S.Ct. 482, 78 L.Ed.2d 679 (1983); United States v. Shapiro, 669 F.2d 593, 597-98 (9th Cir.1982) (refuses to recognize concept of derivative entrapment); United States v. Dove, 629 F.2d 325, 329 (4th Cir.1980) (only inducement by government agent gives rise to entrapment defense); United States v. Twigg, 588 F.2d 373, 376 (3d Cir.1978) (to the same effect); United States v. Burkley, 591 F.2d 903, 911 n. 15 (D.C.Cir.1978) (same), cert. denied, 440 U.S. 966, 99 S.Ct. 1516, 59 L.Ed.2d 782 (1979); United States v. Garcia, 546 F.2d 613, 615 (5th Cir.) (same), cert. denied, 430 U.S. 958, 97 S.Ct. 1608, 51 L.Ed.2d 810 (1977); Whiting v. United States, 321 F.2d 72, 76 (1st Cir.) (same), cert. denied, 375 U.S. 884, 84 S.Ct. 158, 11 L.Ed.2d 114 (1963); Beard v. United States, 59 F.2d 940, 941 (8th Cir.1932) (same); see generally Park, The Entrapment Controversy, 60 Minn.L.Rev. 163, 240 (1976). Cf. United States v. Valencia, 645 F.2d 1158, 1168 (2d Cir.1980) (indirect inducement may amount to entrapment). Here, any inducement which may have come from Christopher went to O'Dell, not Leroux. In fact, Christopher did not have any contact with Leroux until the day that they loaded the Caterpillar, well after the scheme had been conceived. Any alleged inducement to Leroux came only from O'Dell, 6 and since O'Dell was clearly not a government agent, the entrapment defense is unavailable to Leroux as a matter of law.

Moreover, assuming arguendo that Leroux could avail himself of any entrapment of O'Dell, we do not believe Leroux has shown that he or O'Dell were induced to enter the scheme by the government. When the subject of the Caterpillar first came up on December 5, Christopher merely asked O'Dell if he owned the equipment. O'Dell's immediate response was that the owner (Leroux) wanted to sell the equipment. Thus, it was O'Dell, not Agent Christopher, who offered the equipment for sale. While Christopher may have brought up the subject of the Caterpillar purchase several times thereafter, and while he may have provided the means for the removal of the equipment, this case clearly falls within the rule that there is no entrapment where a government agent merely affords the defendant the opportunity or facility to commit the crime. 7 See, e.g., French, 683 F.2d at 1193; Kibby v. United States, 372 F.2d 598, 602-03 (8th Cir.), cert. denied, 387 U.S. 931, 87 S.Ct. 2055, 18 L.Ed.2d 993 (1...

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