U.S. v. Whoie, 90-3022

• Decision Date: 08 February 1991
• Docket Number: No. 90-3022,90-3022
• Citation: 925 F.2d 1481,288 U.S.App.D.C. 261
• Parties: UNITED STATES of America v. Donald WHOIE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1481

925 F.2d 1481

288 U.S.App.D.C. 261

UNITED STATES of America v. Donald WHOIE, Appellant.

No. 90-3022.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 30, 1990.

Decided Feb. 8, 1991.

Appeal from the United States District Court for the District of Columbia.

M. Roy Goldberg (appointed by the court), for appellant.

John W. Kern, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Helen M. Bollwerk, and Mark J. Carroll, Asst. U.S. Attys., were on the brief, for appellee.

Before BUCKLEY, WILLIAMS, and THOMAS, Circuit Judges.

Opinion for the Court filed by Circuit Judge CLARENCE THOMAS.

CLARENCE THOMAS, Circuit Judge:

Donald Whoie was indicted on three counts of distributing cocaine base (crack), see 21 U.S.C. Sec. 841(a), (b)(1)(A)(iii), (b)(1)(B)(iii), and six counts of using a telephone to facilitate his drug deals, see 21 U.S.C. Sec. 843(b). Whoie insisted at trial that the government had entrapped him. The jury found otherwise and convicted him on all nine counts.

In this appeal, Whoie argues for the first time that the district judge committed two errors in charging the jury. Because Whoie failed to object to the jury charge at trial, see Fed.R.Crim.P. 30, we review the district court's instructions only for plain error, see Fed.R.Crim.P. 52(b). The Supreme Court has made plain that courts of appeals should invoke the plain-error doctrine charily, see United States v. Frady, 456 U.S. 152, 163 & n. 14, 102 S.Ct. 1584, 1591 & n. 14, 71 L.Ed.2d 816 (1982)--to correct only " 'particularly egregious errors,' those errors that 'seriously affect the fairness, integrity or public reputation of judicial proceedings,' " United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (citations omitted). With the Court's teaching in mind, we turn to the facts.

Agent Sam Gaye of the Drug Enforcement Administration, posing as a drug dealer named Muhammad, first met Whoie through a dealer named Joe. Gaye and Whoie soon exchanged telephone numbers, including the toll-free number for Whoie's beeper. In the five weeks before Whoie's arrest, Gaye called Whoie's home about twenty times. Whoie called Gaye's beeper or car phone more than three hundred times, sometimes as often as twenty times a day.

Six of Whoie's calls formed the basis of the telephone counts in the indictment. Two calls preceded each of three meetings between Whoie and Gaye, which formed the basis of the distribution counts. At the first meeting, Whoie and Gaye drove together from Whoie's home to a gas station, where Whoie sold Gaye just under fifty grams of crack for $1900. At the second meeting, Whoie and Gaye met at Whoie's home, where Whoie sold Gaye almost fifty-three grams of crack for $2000. Two days before the third meeting, Whoie asked Gaye during a phone call if he were willing to "do the big deal," and buy five hundred or a thousand grams of crack. They settled on two ounces, or about fifty grams, and later, in a hotel bathroom, Whoie sold Gaye almost fifty grams of crack for $2000, $1800 of which Gaye paid then, and $200 of which Gaye promised to pay later. When Gaye failed to pay the balance, Whoie threatened to kill him. According to Whoie, Gaye had threatened to kill him, as well as Joe, and Whoie said that he had sold crack to Gaye in order to save Joe's life.

Whoie's main defense at trial was entrapment, and he asked the district judge to charge the jury accordingly. The government proposed that the judge read pattern instruction number 5.05 from the third edition of Criminal Jury Instructions for the District of Columbia (published in 1978 by the D.C. Bar Association, and known by its cover as the Redbook). Whoie agreed. Adopting the Redbook text almost verbatim, the district judge instructed the jury on entrapment. We reproduce most of the instruction here and number the paragraphs for ease of reference.

... [E]ntrapment means that law enforcement officials ... induced or persuaded an otherwise unwilling person to commit an unlawful act. On the other hand, where a person is predisposed to commit an offense, that is, he is already ready and willing to violate the law, the fact that government officials ... merely afforded opportunities to violate the law does not constitute entrapment.

... Inducement by law enforcement officials to get somebody to violate the law may take many forms, including persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship.... Law enforcement officials are not precluded from using artifice, stealth, stratagem such as use of decoys or undercover agents ..., provided that they merely afford opportunities or facilities for the commission of the offense to one predisposed already to commit it....

... They may properly offer or give the defendant money which is involved in the commission of the crime itself, and they may properly instigate the offer of money to the defendant.

. . . . .

In summary, ... if you find no evidence that the government induced the defendant to commit the crimes with which he is charged, there is no entrapment.... On the other hand, if you find some evidence that the defendant was induced to commit the offenses with which he is charged, you must then go on to consider whether the defendant was predisposed before the inducement to commit the offenses.

If ... you find beyond a reasonable doubt that he was predisposed to commit the offenses, then you should still find that the defendant was not the victim of entrapment. But if the evidence in the case leaves you with a reasonable doubt whether the defendant was predisposed to commit the offenses, then you must find him not guilty.

During their deliberations, the members of the jury asked the judge to reinstruct them on entrapment. He read them almost exactly the same text.

Whoie first argues in his appeal that the district judge erred in letting the jury decide whether Whoie had produced enough evidence of government inducement. See jury instruction pp 2-4. This argument itself comprises two parts: Whoie contends that a district judge may never send the inducement question to the jury, but that even if a district judge may do so in some cases, in this case the judge should have decided that inducement existed as a matter of law. We disagree with Whoie's reading of the law as well as his spin on the facts.

The federal law of entrapment stems from case law that took final shape in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), and Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), and that confirms that the Constitution permits the government substantial leeway in setting " 'trap[s] for the unwary criminal.' " Russell, 411 U.S. at 429, 93 S.Ct. at 1641 (quoting Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820, 2 L.Ed.2d 848 (1958)); see id. 411 U.S. at 431-32, 93 S.Ct. at 1642-43; Hampton, 425 U.S. at 488-89, 96 S.Ct. at 1649 (plurality opinion). The defense of entrapment has two elements: the government must have induced a defendant to commit a crime that the defendant was not otherwise willing to commit. See Russell, 411 U.S. at 428-30, 435-36, 93 S.Ct. at 1641-42, 1644-45; Hampton, 425 U.S. at 488-89, 96 S.Ct. at 1649 (plurality opinion). The Supreme Court has stressed that the defense centers on the latter element, a person's predisposition to commit a crime, and not on the government's conduct. Entrapment is not meant to "give the federal judiciary a 'chancellor's foot' veto over law enforcement practices of which it [happens not to] approve." Russell, 411 U.S. at 435, 93 S.Ct. at 1644; see id. at 428-30, 93 S.Ct. at 1641-42; Hampton, 425 U.S. at 489, 96 S.Ct. at 1649. See generally Mathews v. United States, 485 U.S. 58, 62-63, 108 S.Ct. 883, 886-87, 99 L.Ed.2d 54 (1988) (reviewing Court's entrapment jurisprudence).

The Supreme Court's emphasis on predisposition led some courts to adopt what they call the "unitary approach" to entrapment. In unitary-approach jurisdictions, a defendant who claims he was entrapped must produce evidence to the judge both of government persuasion and of his own "non-predisposition." United States v. El-Gawli, 837 F.2d 142, 145 (3d Cir.), cert. denied, 488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 34 (1988). If the defendant carries his burden of production before the judge, the government bears the burden of persuading the jury "that it did not entrap the defendant." Id. In jurisdictions following the "bifurcated approach," in contrast, the jury, not the judge, decides whether the defendant has carried his burden of proving inducement, not just producing evidence of it. If the defendant has met his burden, the jury then goes on to decide whether the government has met its burden of proving predisposition. See, e.g., United States v. Rivera, 778 F.2d 591, 600-01 (10th Cir.1985), cert. denied, 475 U.S. 1068, 106 S.Ct. 1384, 89 L.Ed.2d 609 (1986).

Whoie argues here that the district judge erred because his instructions reflected precisely the bifurcated approach to the entrapment defense. Unfortunately for Whoie, the bifurcated approach reflects precisely the law of this circuit. See United States v. Burkley, 591 F.2d 903, 910-16 (D.C.Cir.1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1516, 59 L.Ed.2d 782 (1979); Hansford v. United States, 303 F.2d 219, 222-24 (D.C.Cir.1962) (en banc). As we stated in Burkley, quoting Judge Learned Hand's opinion in United States v. Sherman, 200 F.2d 880 (2d Cir.1952):

"[T]wo questions of fact arise [in entrapment cases]: (1) did the agent induce the accused to commit the offense charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offense. On the first question the accused has the burden; on the second the prosecution has it."

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