U.S. v. Sherrod
Decision Date | 08 September 1994 |
Docket Number | No. 93-2263,93-2263 |
Citation | 33 F.3d 723 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Eric SHERROD, Defendant-Appellant. |
Court | U.S. Court of Appeals — Sixth Circuit |
Jonathan Tukel, Office of U.S. Atty., Detroit, MI (argued and briefed), for plaintiff-appellee.
Andrew Patton, Andrew N. Wise (argued and briefed), Federal Defender Office, Detroit, MI, for defendant-appellant.
Before: JONES and RYAN, Circuit Judges; and BERTELSMAN, Chief District Judge. *
In his appeal from a drug trafficking conviction, defendant asserts that the entrapment instruction given was incorrect because it did not make clear that predisposition had to exist prior to contact by the government agent. He also contends that the trial court made insufficiently detailed findings at his sentencing. We find the instruction issue without merit and affirm the conviction, but reverse on the sentencing issue and remand for further findings by the district court.
Joseph Neil met Eric Sherrod while working as a cab driver in Detroit. In June 1992, Drug Enforcement Administration (DEA) Special Agent Daniel Krause began to investigate Sherrod for drug trafficking, based upon information obtained from Neil acting as a confidential informant.
On June 19, 1992, at the direction of Agent Krause, Neil placed tape recorded telephone calls to defendant to arrange the purchase of cocaine. No deal was negotiated during this conversation.
On June 22, 1992, Neil placed four additional calls to defendant. Each was recorded. As a result, the informant arranged to meet defendant that day to purchase one ounce of crack cocaine. During one of these conversations, defendant told Neil "[u]sually I send somebody else to make a delivery for me." The informant was given $1,000.00 to make the purchase.
Agent Krause arranged for the surveillance of the meeting, and observed defendant enter and exit Neil's vehicle. Afterward, Neil turned over the drugs to Agent Krause, who weighed them. Agent Krause discovered that there were only 12.3 grams instead of an ounce (28.35 grams). Thereafter, several attempts to reach defendant were unsuccessful.
However, two days later on June 24, 1992, defendant contacted Neil. Agent Krause also participated undercover. He and Neil spoke to defendant about the shortage, and requested that he make up the difference.
On July 30, 1992, Neil placed a taped call to defendant. During this call, Neil arranged a purchase of two ounces of crack cocaine for $2,000.00. Agent Krause planned the purchase to be a "buy-bust," meaning that the defendant would be arrested after the purchase took place.
Agent Krause, acting undercover, was present at the purchase. Once the transaction between Neil and defendant was complete, Agent Krause gave an arrest signal, whereupon a surveillance team of police officers arrested defendant. Upon a search of defendant's person, the police recovered a .38 caliber pistol, which defendant admitted to having for protection during the drug deal.
On November 12, 1992, defendant was indicted on four counts charged: Counts One through Three for distribution of cocaine and cocaine base in violation of 21 U.S.C. Sec. 841(a)(1); and Count Four for carrying a firearm in relation to the drug transaction in violation of 18 U.S.C. Sec. 924(c)(1).
At trial, he testified on his own behalf. By agreement of counsel and without objection, the trial judge instructed the jury on entrapment using Sixth Circuit Pattern Instruction 6.03.
Defendant was found guilty on all counts. He was subsequently assessed a two-point enhancement for obstruction of justice and was sentenced to a total of 181 months imprisonment.
Because no objection was made to the instruction at trial, our review is limited to one for plain error. The standard of review for plain error is set forth in a long line of our cases, one of the most recent of which is United States v. Thomas, 11 F.3d 620 (6th Cir.1993). There, the court propounded an extensive discussion of the plain error doctrine and reviewed many authorities concluding:
Thomas, 11 F.3d at 629. At another point in the opinion, the court observed that "plain" is synonymous with "clear" or "obvious." Id.
The Sixth Circuit's Pattern Criminal Jury Instructions were drafted by a committee "to promote uniformity, to assist busy judges and practitioners, to reduce litigation and to state the law in an understandable way." 1 Although approved by the Sixth Circuit Judicial Council for publication, the approving resolution clearly specified that the instructions were not binding: "provided, however, that this Resolution shall not be construed as an adjudicative approval of the content of such instructions which must await a case-by-case review by the Court of Appeals." Pattern Instructions, p. iii. Furthermore, the Introduction to the Pattern Instructions admonishes that "[c]ounsel and the court must work to tailor the instructions to fit the facts of each case." Pattern Instructions, p. vii.
The entrapment Pattern Instruction (6.03) reads as follows:
To continue reading
Request your trial-
Noble v. United States
...and because the pattern instructions are not binding and must be tailored "to fit the facts of each case." United States v. Sherrod, 33 F.3d 723, 725 (6th Cir. 1994). The instructions given to Petitioner's jury fit the bill in all respects. Those instructions provided the jury with the law ......
-
U.S. v. Jones
...affecting substantial rights may be noticed although they were not brought to the attention of the court."); United States v. Sherrod, 33 F.3d 723, 724 (6th Cir.1994). In United States v. Thomas, 11 F.3d 620 (6th Cir.1993), a panel of this court had occasion to consider thoroughly the Supre......
-
Garner v. Hutchings
...(1st Cir. 2012); United States v. Maury, 695 F.3d 227, 259 (3rd Cir. 2012) ("not binding on this, or any, court"); United States v. Sherrod, 33 F.3d 723, 725 (6th Cir. 1994); United States v. Cornelison, 717 F.3d 623, 628 (8th Cir. 2013); United States v. Carter, 776 F.3d 1309 (11th Cir. 20......
-
U.S. v. Lucas
...only if it constitutes a "plain error" that affects the substantial rights of the defendant. Fed.R.Crim.P. 52(b); United States v. Sherrod, 33 F.3d 723, 724 (6th Cir.1994), cert. denied, 115 S.Ct. 1317 Because Lucas never objected, the court reviews solely for plain error whether the admiss......