U.S. v. Rhodes

• Decision Date: 16 August 1983
• Docket Number: Nos. 82-1208,82-1209,s. 82-1208
• Citation: 713 F.2d 463
• Parties: 13 Fed. R. Evid. Serv. 1843 UNITED STATES of America, Plaintiff-Appellee, v. Terry Lee RHODES, and Charles Dudley, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 463

713 F.2d 463

13 Fed. R. Evid. Serv. 1843

UNITED STATES of America, Plaintiff-Appellee, v. Terry Lee RHODES, and Charles Dudley, Defendants-Appellants.

Nos. 82-1208, 82-1209.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 2, 1983.

Decided Aug. 16, 1983.

Richard E. Drooyan, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

W. Michael Mayock, Joseph F. Walsh, Los Angeles, Cal., for defendants-appellants.

Appeal from the United States District Court for the Central District of California.

Before ELY, SNEED, and TANG, Circuit Judges.

ELY, Circuit Judge:

This case involves two appeals from criminal convictions for conspiracy and possession of stolen mail in violation of 18 U.S.C. §§ 371 and 1708 (1976) respectively. We have jurisdiction under 28 U.S.C. §§ 1291 and 1294. Defendants-Appellants Charles Dudley and Terry Rhodes timely filed their Notices of Appeal on March 30, 1982. On the basis of the record and the applicable case law it is our conclusion that the convictions must be affirmed.

FACTUAL BACKGROUND

On November 12, 1981, a federal grand jury indicted defendants Charles Dudley and Terry Rhodes along with seventeen other individuals for participating in a conspiracy to possess and distribute numerous checks which had been stolen from the mail in violation of 18 U.S.C. § 371 (1976). The indictment also charged Dudley with possession of stolen mail in violation of 18 U.S.C. § 1708 (1976). Dudley and Rhodes were arraigned before the Honorable Mariana R. Pfaelzer on November 23, 1981, and entered pleas of not guilty to the indictment.

On January 20, 1982, a federal grand jury returned superseding indictments against Dudley and Rhodes and the remaining defendants who had not pleaded guilty. The case was transferred to the Honorable Jesse W. Curtis and tried before a jury beginning on February 9, 1982. Thereafter, on March 1, 1982, the jury found Dudley and Rhodes guilty of conspiracy. In addition, Dudley was also convicted on two counts of possession of stolen mail.

On March 22, 1982, Dudley was sentenced to five years imprisonment on Count One and three years imprisonment on Counts Two and Three to run concurrently with the sentence imposed on Count One. On the same day Rhodes was sentenced to three years imprisonment on Count One.

ANALYSIS

The following points of error are raised by the appellants Dudley and Rhodes.

First, Dudley argues that the trial court erroneously excluded evidence of his entrapment by one Will Cunningham and erroneously refused to instruct the jury concerning the defense of entrapment. There are two prerequisites to the defense of entrapment: (1) the defendant must be induced by a government agent to commit the particular criminal act; and (2) the defendant must lack the predisposition to commit the act. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1974); United States v. Jabara, 618 F.2d 1319, 1328 (9th Cir.), cert. denied, 446 U.S. 987, 100 S.Ct. 2973, 64 L.Ed.2d 845 (1980). A defendant is not entitled to have the issue of entrapment submitted to the jury in the absence of evidence showing some inducement by a government agent and a lack of predisposition by the defendant. United States v. Glassel, 488 F.2d 143 (9th Cir.1973), cert. denied, 416 U.S. 941, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974).

A review of the record demonstrates that there was insufficient evidence to satisfy either element of the entrapment defense. There was no evidence to indicate that Will Cunningham was acting as a government agent at the time he arranged the meeting between appellant Dudley and undercover postal inspectors, which resulted in Dudley's arrest. Cunningham, a bounty hunter, had an interest in sharing information with police officers concerning the whereabouts of fugitives he was seeking. With respect to his occupation, Cunningham on occasion exchanged information with police officers without receiving compensation. Such an interest does not, however, make him a government agent for purposes of this case. The record reveals that the conduct of Cunningham, at most, amounted to assistance in the commission of the crime, which is insufficient to show entrapment. See United States v. Ratcliffe, 550 F.2d 431, 434 (9th Cir.1976).

In addition, Dudley was not entitled to an entrapment instruction since there existed overwhelming evidence of his predisposition to participate in the conspiracy to possess and distribute stolen checks. In United States v. Reynoso-Ulloa, 548 F.2d 1329, 1336 (9th Cir.), cert. denied, 436 U.S. 926, 98 S.Ct. 2820, 56 L.Ed.2d 769 (1978), this Circuit noted that "the most important factor ... is whether the defendant evidenced reluctance to engage in criminal activity which was overcome by repeated Government inducement." The evidence at trial established that apart from the transaction with Cunningham, Dudley engaged in numerous acts intended to further the objects of the conspiracy. These actions clearly show that Dudley was not reluctant to engage in criminal activity. For example, Dudley recruited government witness Lorraine Belloti to distribute stolen checks, he instructed her to open a fictitious bank account in the name Rosie Kendricks, he received stolen checks from government witness Eddie Lewis, he opened mail brought by co-defendant Terry Rhodes and removed checks, he laundered stolen checks through Larry Colbert, he attempted to sell stolen checks to Century Check Cashing, and he distributed stolen checks to Henry Basa. Thus, Dudley did not meet his preliminary burden of establishing that he was induced to commit the crime, and the prosecution established that he was predisposed to commit the crime. See United States v. Diggs, 649 F.2d 731, 739 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981); United States v. Hermosillo-Nanez, 545 F.2d 1230, 1232 (9th Cir.1976), cert. denied, 429 U.S. 1050, 97 S.Ct. 763, 50 L.Ed.2d 767 (1977).

When the evidence presents no genuine dispute as to whether the defendant was entrapped, there is no factual issue for the jury, and the judge has a duty to rule on the defense as a matter of law. United States v. Glaeser, 550 F.2d 483, 487 (9th Cir.1977). In the circumstances of this case, there was no factual issue for the jury, and the trial court correctly ruled as a matter of law that Dudley was not entrapped.

Second, during the course of the Government's case, the trial court increased defendant Dudley's bond and remanded him to custody after Dudley engaged in conduct, which in the trial court's opinion, threatened to disrupt the orderly progress of the trial. Rule 46(b) of the Federal Rules of Criminal Procedure provides that a trial court may terminate a defendant's release on bail if necessary "to assure that his conduct will not obstruct the orderly and expeditious progress of the trial." See Carbo v. United States, 288 F.2d 282 (9th Cir.1961).

From a review of the record we conclude that the trial court properly invoked its authority to prevent Dudley from interfering with the trial.

The trial court's action was taken following a particular incident. After the trial was adjourned one day for the noon recess, Dudley crossed over to the prosecution side of the courtroom and "said in a menacing voice that he didn't want [the prosecution] bringing any more people from the community in here, and he didn't want any more of this going on." He added "in a very menacing voice, 'I am going to clean this up when this [sic] all over.' " His statements were made in the presence of the prosecutor, several postal inspectors, and a witness who had just testified that Dudley looked "similar" to an individual who attempted to sell stolen California tax refund checks to Century Check Cashing. From the timing and content of his statements, it is quite apparent that Dudley was attempting to intimidate the prosecution and its witnesses.

The incident in court was not the first such attempt by Dudley to influence the Government. The court was advised that prior to trial Dudley told the prosecutor "that there was a lot more going on in this case than [the prosecutor] knew about. There were a lot of things he didn't like and he didn't want to get involved in, but that [the prosecutor] should watch [his] family." The court was also advised that a number of witnesses and a postal inspector had received threatening phone calls. These facts and circumstances demonstrate that the trial court could reasonably believe that Dudley posed a real threat to the due administration of the trial.

In addition, Dudley claims that the trial court's action was improper because the court failed to hold a hearing to determine the validity of the Government's charge. A full hearing is not required so long as the trial judge states his reasons and gives defense counsel a chance to rebut the charges. United States v. Stroud, 474 F.2d 737 (9th Cir.), cert. denied, 412 U.S. 930, 93 S.Ct. 2759, 37 L.Ed.2d 157 (1973). In this case, the prosecutor advised the court of Dudley's conduct and identified the postal inspectors as additional witnesses to the incident. After Dudley's counsel answered the charges, the trial court remanded Dudley to custody because of the "threats" and because "Dudley [had] no right to cross the courtroom and approach these witnesses." The record demonstrates that the trial court was advised of all pertinent facts before deciding that Dudley's conduct justified revoking his bond.

Third, contrary to Dudley's assertion, the trial court never excluded his character witnesses from testifying. During the defense case, Dudley repeatedly asked to be released on bail and for a continuance of the trial, claiming that he was the only person who could locate certain witnesses. He also claimed that his release was necessary to allow him to prepare and present a defense because his...