U.S. v. Webster

• Decision Date: 02 July 1981
• Docket Number: No. 79-5013,79-5013
• Citation: 649 F.2d 346
• Parties: 8 Fed. R. Evid. Serv. 641 UNITED STATES of America, Plaintiff-Appellee, v. Albert Keith WEBSTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 346

649 F.2d 346

8 Fed. R. Evid. Serv. 641

UNITED STATES of America, Plaintiff-Appellee, v. Albert Keith WEBSTER, Defendant-Appellant.

No. 79-5013.

United States Court of Appeals Fifth Circuit.

July 2, 1981.

Charles I. Poole, Miami, Fla. (Court-appointed), for defendant-appellant.

Samuel J. Smargon, Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before GODBOLD, Chief Judge, BROWN, COLEMAN, AINSWORTH, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON, and THOMAS A. CLARK, Circuit Judges. ^*

HILL, Circuit Judge:

When the defendant in a criminal case adequately raises the affirmative defense of entrapment, the government has the burden of proving beyond a reasonable doubt that the defendant was predisposed to commit the crime charged. United States v. Dickens, 524 F.2d 441, 444 (5th Cir. 1975). This case presents us with an opportunity to reconsider the long-standing rule of this Circuit permitting introduction of out-of-court statements about the defendant's reputation and prior criminal conduct in cases where the issue of entrapment has been raised. Despite the fact that no other Circuit has seen fit to recognize such an exception to the rule against hearsay, ¹ this rule has survived in our Court for more than a decade. It has not, however, gone unquestioned. In United States v. Daniels, 572 F.2d 535, 539 (5th Cir. 1978), we pointed out that permitting the use of double level hearsay based on information originally supplied by an unnamed source presented the possibility of grave abuse, unjustifiably penalizing the defendant for raising the defense of entrapment and creating a serious obstacle to the accused's right to confront the witnesses against him. The panel concluded that it was, however, barred by previous Fifth Circuit precedent. In the present case the panel, in its now-vacated opinion, recognized the logic of the view of other circuits but properly recognized that it was bound by our precedents, United States v. Webster, 606 F.2d 581 (5th Cir. 1979). Today we hold that hearsay evidence is only admissible in an entrapment case under the usual rules relating to hearsay, so that hearsay may not be introduced as evidence of predisposition. Only in special circumstances may the government prove what its agents have been told about the defendant as evidence of good faith, reasonableness or proper motive of the government and then only to rebut contrary assertions by the defendant. To the extent our prior cases are to the contrary, they are overruled.

I. Facts

The facts are not complex. Appellant Webster unwittingly became involved with a woman who was a government informant. With her help, Webster sold cocaine to an undercover DEA agent. Webster was charged with two counts of distributing cocaine and two counts of possessing cocaine with the intent to distribute the same. At trial, his sole defense was entrapment. He attempted to prove that he was introduced to the undercover agent by the female informant and that it was because of her importunings that he did the illegal acts. In rebuttal, the prosecution argued that Webster was not an innocent dupe who was trapped into breaking the law by the government. In support of its argument, the prosecution put on the stand a DEA agent who testified that a few months before the arrest he had been told by a reliable informant that he had purchased cocaine from Webster on several occasions. Defense counsel's objections to this testimony on the ground that it was hearsay were overruled. Webster was convicted on all four counts. On appeal, the convictions were affirmed. United States v. Webster, supra.

II. Entrapment

First recognized by the Supreme Court in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), the defense of entrapment is "virtually unique to the criminal jurisprudence of the United States," G. Fletcher, Rethinking Criminal Law, § 7.3.B, at 541 (1978); See Mikell, The Federal Courts, 90 U.Pa.L.Rev. 245, 246 (1942). The justification for the defense is "that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense, but was induced to commit them by the Government." ² United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366 (1973). Three major Supreme Court cases, decided over a span of 41 years, establish that entrapment occurs "when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute." Sorrells v. U.S. 287 U.S. at 442, 53 S.Ct. at 212-213; accord, United States v. Russell, 411 U.S. at 428-29, 93 S.Ct. at 1641; Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820, 2 L.Ed.2d 848 (1958).

Notwithstanding the forceful arguments to the contrary, it is clear that when entrapment is at issue the focal point of the inquiry is on the predisposition of the defendant. ³ See United States v. Russell, 411 U.S. at 433, 93 S.Ct. at 1643. Thus, a defendant who wishes to assert an entrapment defense must initially come forward with evidence " '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.' " United States v. Dickens, 524 F.2d 441, 444 (5th Cir. 1975) (quoting United States v. Mosley, 496 F.2d 1012, 1014 (5th Cir. 1974)). Once the defendant has carried this burden, the government must, if it is to prevail, prove beyond a reasonable doubt that the defendant was predisposed to commit the crime charged. United States v. Dickens, 524 F.2d at 444.

III. Hearsay to Prove Disposition

Until today, this Circuit has permitted the prosecution to introduce all manner of hearsay evidence to rebut the defendant's claim that he was entrapped. Many of the cases have permitted introduction on the theory that the hearsay was acceptable as proof of the defendant's predisposition. If this was ever justified, ⁴ it is no longer acceptable.

We begin with basic principles of evidence law. The law of evidence concerns itself primarily with the ways in which the parties may and may not prove the existence of facts. Generally, the law frowns upon attempts to prove facts by statements made outside the courtroom. Whether an out-of-court statement is hearsay depends on whether it is offered for its truth or merely for the fact that it was made. Where the alleged fact is only so if the substance of the statement is the truth, the statement constitutes hearsay. See Anderson v. United States, 417 U.S. 211, 219, 94 S.Ct. 2253, 2260, 41 L.Ed.2d 20 (1974). On the other hand, where the alleged fact may be so regardless of whether the statement is true or false, the statement is not hearsay. See id.

The out-of-court statements that we have held admissible in entrapment cases fall into three categories: (1) statements made by an informant to a law enforcement officer about the defendant's reputation for being a criminal; (2) statements made by an informant to a law enforcement officer about specific instances in which the defendant engaged in criminal activities; and (3) statements about the defendant, made by various sources, that have been recorded in police reports. Typically, the law enforcement officer testifies either to conversations with the informant or to having read the police report. When offered to prove predisposition, any such statements are out-and-out hearsay. Predisposition is a state of mind, see United States v. Donoho, 575 F.2d 718, 719-20 (9th Cir. 1978), and "(t)he state of a man's mind is as much a fact as the state of his digestion." 2 Wigmore, Evidence § 661, at 774 (3d ed. 1940) (quoting Edgington v. Fitzmaurice, L.R. 29 Ch.D. 459 (1882)). The out-of-court statements about prior criminal activities and reputation for criminality prove the fact of predisposition only if they are substantively true. See United States v. McClain, 531 F.2d 431, 436 (9th Cir.), cert. denied 429 U.S. 835, 97 S.Ct. 102, 50 L.Ed.2d 101 (1976). The mere fact that the statements were made is not evidence that the defendant was predisposed to commit the crime charged.

We have little trouble rejecting the government's argument that such statements are admissible under the character/reputation provisions of the Federal Rules of Evidence, ⁵ see Fed.R.Evid. 404(a)(1), 405, 803. ⁶ Read together, these Rules provide that evidence of a person's reputation in the community and specific instances of conduct may be admitted to prove "a pertinent trait of his character," Fed.R.Evid. 404(a)(1). We need merely repeat that which we have already stated: predisposition is a state of mind, not a character trait. ⁷

Our creation of a rule that allows gross hearsay evidence to be used to prove predisposition has resulted in the very evils that the rule against hearsay was designed to prevent. The jury is free to believe the unsworn, unverified statements of government informants, sometimes unidentified, whose credibility is not subject to effective testing before the jury and whose motivations may be less than honorable. ⁸ We are hard pressed to envision a situation where the disparity between the probative value and prejudical effect of evidence is greater. Finding inapplicable the exceptions to the rule against hearsay enumerated in the Federal Rules of Evidence, we hold that hearsay evidence is never admissible for the purpose of proving the defendant's predisposition. ⁹ All prior decisions of this Court to the contrary are hereby overruled.

The prosecution may not do indirectly what we hold that it cannot do directly. Therefore, except in the limited circumstances...