U.S. v. Sherwood, 84-1719

• Decision Date: 12 August 1985
• Docket Number: No. 84-1719,84-1719
• Citation: 770 F.2d 650
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John SHERWOOD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 650

770 F.2d 650

UNITED STATES of America, Plaintiff-Appellee, v. John SHERWOOD, Defendant-Appellant.

No. 84-1719.

United States Court of Appeals, Seventh Circuit.

Argued May 20, 1985.

Decided Aug. 12, 1985.

Alan M. Freedman, Chicago, Ill., for defendant-appellant.

L. Felipe Sanchez, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before WOOD and POSNER, Circuit Judges, and WEIGEL, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

Defendant-appellant, John Sherwood, appeals his convictions for conspiracy to steal goods moving in interstate commerce, 18 U.S.C. Sec. 371, for selling more than $5,000 worth of stolen merchandise belonging to Montgomery Ward Co., 18 U.S.C. Sec. 2315, and for willful failure to appear for a preliminary hearing, 18 U.S.C. Sec. 3150 (since amended and recodified as 18 U.S.C. Sec. 3146). Sherwood raises jury instruction and ineffective assistance claims. We affirm.

I.

The evidence presented at trial established that on May 26, 1983, Sherwood called undercover agent Frank Jury about a shipment of stolen merchandise from Montgomery Ward. Sherwood met agent Jury at a motel in Harvey, Illinois and negotiated an exchange of the merchandise for $18,000. On May 27, 1983, Sherwood, along with co-conspirator, Michael Lawrence, delivered the merchandise to undercover agents Jury and Michael Konkol.

Sherwood was arrested on September 1, 1983 and released on bond pending the preliminary hearing set for September 15, 1983. Sherwood failed to appear at the preliminary hearing and was arrested again on September 25, 1983. After being advised of his rights, the defendant knowingly and voluntarily executed the FO395 Interrogation and Advice of Rights Form. He then narrated to two FBI agents the theft and sale of the Montgomery Ward's shipment, as well as his involvement in numerous other criminal activities for which he was under investigation, including the theft of a K-Mart toy shipment, frozen french fries and Tator Tots, New Zealand beef, Firestone Tires, and an airplane.

Neither at trial nor on appeal has Sherwood taken issue with the above facts. Rather he relies on the defenses of entrapment and lack of willfulness. In support of these defenses Sherwood presented evidence that he suffered from alcoholism and other chemical dependency and a bipolar disorder, and that agent Jury repeatedly called him, thus provoking his illegal conduct.

II.

Sherwood argues that the entrapment instruction was defective for failure to specifically state that the government had the burden of proving beyond a reasonable doubt that the defendant was not entrapped. Since defendant's trial attorney did not object to the entrapment instruction we review the failure to instruct on the entrapment burden of proof under the "plain error" standard. See Fed.R.Crim.P 52(b). Plain error is an error so egregious that it resulted in "an actual miscarriage of justice, which implies the conviction of one who but for the error probably would have been acquitted." United States v. Silverstein, 732 F.2d 1338, 1349 (7th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 792, 83 L.Ed.2d 785 (1985).

This circuit's en banc decision in United States v. Johnson, 605 F.2d 1025 (7th Cir.1979), cert. denied, 444 U.S. 1033, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980), provides the framework for analyzing a failure to instruct on the burden of proof in an entrapment instruction. The Johnson court held that although it is preferable that an entrapment instruction include a specific provision placing the burden of proof on the government, failure to do so does not automatically require reversal, even where the error was assigned at trial. Id. at 1028-29. Each case must be considered on its facts with an eye to the strength of the entrapment defense and considering the instruction as a whole. Id.

The evidence disproving entrapment was overwhelming. The defendant confessed to involvement not only in the charged crime but numerous others as well. Involvement in crimes similar to the one charged suggests a defendant's predisposition to committing the charged crime whether or not an undercover agent is involved. See id. at 1029 (defendant's prior involvement in drug deals undermines entrapment defense). The fact that Sherwood was capable of helping to plan and carry off the Montgomery Ward job, which required teamwork and planning, belies the suggestion that his alcohol/drug problems or bipolar disorder prevented him from making conscious, willful choices. Too, although agent Jury called Sherwood on several occasions, Sherwood initiated the call which lead directly to the sale of the stolen Ward's merchandise involved in this case. Finally, the government presented testimony of a close friend of Sherwood's suggesting that his alcohol problem was not severe. In view of the entire record, we do not think the entrapment issue close.

In addition, we do not find the failure to specifically allocate the burden of proof to the government on entrapment particularly disturbing in this case when considered in the context of the instructions as a whole. The entrapment instruction did not contain the slightest suggestion that entrapment was an affirmative defense which the defendant had to prove. To the contrary, the instructions contained repeated reminders that the burden of proof rested upon the government. The instructions began with a statement that the defendant was presumed innocent, that the government bore the burden of proof, and that the burden remained with the government throughout the case. Later the instructions stated that the government must prove beyond a reasonable doubt that defendant was aware of the common purpose and was a willing participant. The instructions ended with a charge that the jury must determine whether the government had proved its case beyond a reasonable doubt. Read as a whole, the district court judge's charge to the jury made it clear that the government bore the burden of proving beyond a reasonable doubt that defendant was not entrapped.

In view of the strong government case disproving entrapment, the portions of the instructions which made clear that the government bore the burden of proof throughout the case, and the lack of any suggestion that the defendant bore the burden on the entrapment issue, we hold that the failure to specifically instruct on the entrapment defense burden of proof did not result in a miscarriage of justice requiring reversal under the plain error test of Silverstein, 732 F.2d at 1349.

III.

Sherwood also complains about the trial judge's failure to instruct on the definition of willfulness. The Committee on Federal Criminal Jury Instructions of the Seventh Circuit has recommended "that an instruction defining the word 'willfully' not be given unless the word is in the statute defining the offense being tried." Pattern Jury Instruction 6.03 (7th Cir.1980); accord United States v. Streich, 759 F.2d 579, 585 (7th Cir.1985). Of the three statutes under which Sherwood was charged and convicted only section 3150 of Title 18, which concerns Sherwood's failure to appear at the preliminary hearing, contains the word "willful." As with the entrapment issue above, the defendant did not assign error on this point at trial; therefore, we apply the "plain error" standard in reviewing the failure to instruct on the definition of "willfulness."

The inclusion of "willfully" in the definition of the bail jumping statute has been interpreted to mean that "the person charged ... knows what he is doing. It does not mean that, in addition, he must suppose that he is breaking the law." United States v. Hall, 346 F.2d 875, 880 (2d Cir.) (quoting American Surety Co. v. Sullivan, 7 F.2d 605, 606 (2d Cir.1925) (Learned Hand writing)), cert. denied, 382 U.S. 910, 86 S.Ct. 250, 15 L.Ed.2d 161 (1965); see also Federal Criminal Jury Instructions of the Seventh Circuit, 6.03 (citing American Surety in its discussion of the definition of "willfully"); S.Rep. No. 225, 98th Cong., 2d Sess. 31-32 reprinted in 1984 U.S.Code Cong. & Adm.News pp. 3182, 3214-15 (Judiciary Committee Report on...