United States v. Ambrose, 72-2190

• Decision Date: 28 August 1973
• Docket Number: No. 72-2190,72-2191.,72-2190
• Citation: 483 F.2d 742
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Adrian AMBROSE, alias Lilly Ambrose, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

483 F.2d 742 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. James Adrian AMBROSE, alias Lilly Ambrose, Defendant-Appellant.

Nos. 72-2190, 72-2191.

United States Court of Appeals, Sixth Circuit.

Argued April 18, 1973.

Decided August 28, 1973.

COPYRIGHT MATERIAL OMITTED

Bob McD. Green, Johnson City, Tenn., for defendant-appellant.

Carl P. McDonald, Asst. U. S. Atty., for plaintiff-appellee; John L. Bowers, Jr., U. S. Atty., Charles N. Stedman, Asst. U. S. Atty., Knoxville, Tenn., on brief.

Before WEICK, McCREE and KENT,^* Circuit Judges.

McCREE, Circuit Judge.

James Ambrose, a/k/a Lilly Ambrose, appeals from a jury conviction of one count of aiding and abetting the sale of non-tax-paid liquor, in violation of 18 U.S.C. § 2 and 26 U.S.C. § 5604(a) (1) (1970). He also appeals from the revocation of the probation that he had received upon his conviction of an earlier offense. The revocation was based in part upon the conviction we consider in the other appeal. We reverse the conviction and remand for a new trial in the first appeal, and we affirm the probation revocation in the second.

The Government's case consisted of the testimony of Bobby Bilbo, an undercover agent of the Alcohol, Tobacco and Firearms Division of the Treasury Department investigating sales of non-tax-paid liquor in eastern Tennessee. On direct examination, he testified that on October 1, 1971, he was driving his car on a county road when a car driven by appellant approached and passed by him in the opposite direction. Bilbo observed the car turn around and come up behind him, and he thereafter pulled over to the side of the road. Appellant stopped his car behind Bilbo's and walked over to Bilbo's car to ask whether Bilbo had seen a person for whom appellant was looking (later identified as Mickey Faulkner, an informant paid by Bilbo for information relating to sales of moonshine). Bilbo told appellant that he had not seen this man. Appellant then stated, according to Bilbo, that the man for whom he was looking knew someone who wanted to buy moonshine whiskey, to which Bilbo responded that he might be the man whom Faulkner had in mind because he (Bilbo) wanted to purchase some moonshine. The two dickered over price, and appellant indicated that he could not promise anything, but, after talking in his car with a man named Luke (later identified as Luke Lyons, who was indicted with appellant but who was not tried with him), appellant told Bilbo to meet Luke and him at a local restaurant at 9:00 p. m. that night.

Bilbo testified that he rendezvoused with appellant and Luke, and that appellant told him that everything was ready. Appellant and Luke then left the restaurant for 15 minutes. Luke returned alone, and he and Bilbo went to a nearby site where 24 gallons of non-tax-paid liquor were cached. The liquor was loaded into the agent's car, Bilbo paid Luke $180 and the liquor was transported to the agent's headquarters where it was analyzed and stored. One jug from the shipment was introduced as an exhibit at the trial.

Ambrose testified in his own behalf, and admitted conversing with Bilbo on the afternoon of October 1. According to appellant, he was told by his cousin that Mickey Faulkner, the son of a local bootlegger, was looking for him, and appellant picked up Luke and attempted to find Faulkner. He was told that Faulkner had left his home with another man in a red Plymouth automobile. Appellant then drove about looking for the car — appellant was evasive about why he so doggedly pursued Faulkner that day¹ — and he stopped agent Bilbo when he saw that Bilbo was driving a red Plymouth. Ambrose testified that he asked Bilbo whether he had seen Faulkner. Bilbo responded that he had not but then asked, "Have you got any liquor?" Appellant said that he did not have any "but the boy with me might be able to help you." Luke and the agent talked for a while and agreed to meet that night. Appellant admitted being at the restaurant when Bilbo entered on the night of October 1, but he claimed that Bilbo asked him at that time whether Luke was going to help him and that he told Bilbo that he did not know although Luke had said he would be there if he could. Appellant then left the restaurant and heard nothing more about the transaction.

Appellant's only defense at trial was a claim of entrapment, and his first contention on appeal is that the district court erred in denying his motion for a judgment of acquittal at the close of the Government's case. He argued to the district court and maintains on appeal that the testimony of agent Bilbo on cross-examination established that appellant was entrapped as a matter of law.

In support of this contention, appellant relies principally on Bilbo's description of his undercover work and on the use of Faulkner as an informant. Bilbo admitted that he paid Faulkner $10 per day for expenses incurred in contacting people who might be willing to sell moonshine to Bilbo and then relaying to Bilbo the information that a buy could be arranged. Defense counsel pursued the point that Bilbo, by his undercover work and by his utilization of Faulkner as an informant, was in effect attempting to procure the commission of illegal acts. Bilbo admitted, in response to questioning by defense counsel, that he did attempt to induce people to sell him moonshine. Appellant stresses particularly the following exchanges:

Q And most of these other things that happened follow along in the lines of what I have been asking you about; in other words, making contacts and trying to procure or induce a violation of the law. Is that correct, sir?

. . . . . .

A True.

Q . . . It is true, is it not, that you have calculated this scheme and went about it in such a way and manner that you intended for it to produce a violation of the law. Is that correct, sir?

A Yes, sir.

(Transcript at 24, 30.) Because Bilbo admitted sending Faulkner out to assist him in making purchases, because Bilbo admitted on recross-examination that he had given appellant's name to Faulkner as a person who might be interested in selling moonshine, because Faulkner had made it known to appellant on October 1 that he desired to see Bilbo, and because appellant was looking for Faulkner whom he knew to be in a red Plymouth with another man, appellant contends that Bilbo's testimony established as a matter of law that appellant was induced into aiding and abetting the sale of non-tax-paid liquor, and therefore that the Government did not prove beyond a reasonable doubt that he was not entrapped. Accordingly, the court should have granted his motion for a judgment of acquittal at the close of the Government's case.

There are a number of infirmities in appellant's argument that require us to reject it.

First, by presenting evidence, appellant waived objection to the denial of his motion, although by renewing the motion at the close of all the proofs, he preserved the question of the sufficiency of the evidence on the record taken as a whole, United States v. Maffei, 450 F.2d 928, 930 (6th Cir. 1971), cert. denied, 406 U.S. 938, 92 S.Ct. 1789, 32 L.Ed.2d 138 (1972).

Second, in considering whether sufficient evidence supports the jury's verdict, we do not decide whether the Government has proved the defendant guilty beyond a reasonable doubt; our role is limited to a determination whether the evidence sufficed to permit the jury to find him guilty beyond a reasonable doubt. United States v. Luxenberg, 374 F.2d 241, 248 (6th Cir. 1967); United States v. Ragland, 306 F.2d 732, 735 (4th Cir. 1962), cert. denied, 371 U.S. 949, 83 S.Ct. 504, 9 L.Ed. 2d 498 (1963). And, only when undisputed facts establish that the criminal design originated with the Government agent, that the agent implanted in the mind of an innocent person the disposition to commit the offense, and that the defendant then committed the offense at the urging of the Government agent can we conclude that entrapment was established as a matter of law. Sherman v. United States, 356 U.S. 369, 372-373, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 77 L.Ed. 413 (1932); United States v. Head, 353 F.2d 566, 568 (6th Cir. 1965).

In applying these tests, we conclude that the case was properly submitted to the jury and that there was ample evidence to support the verdict of guilty. Bilbo's responses on cross-examination at most constituted testimony from which the trier of fact could have found inducement on the part of the Government agent. But establishing that an agent worked in an undercover capacity to earn the trust of participants in an illegal enterprise and to feign a bona fide interest in furthering their illicit goals does not establish the defense of entrapment. Only when the agent overbears an otherwise innocent person's will and thereby induces him to commit a criminal act that he was not disposed to commit has the agent engaged in conduct affording a complete defense to conviction of the offense. A defendant's predisposition is the "principal element in the defense of entrapment," United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (U.S. April 24, 1973), and he should be acquitted only if the jury concludes (or the undisputed evidence demonstrates as a matter of law) that there is a reasonable doubt whether he was predisposed to commit the crime. See United States v. Russell, supra; United States v. Eddings, 478 F.2d 67, 71-72 (6th Cir. 1973). Thus, Bilbo's responses on cross-examination must be viewed in context with other evidence in the case from which the jury might have concluded that Ambrose was merely an "unwary criminal." Sherman v. United States, supra, 356 U.S. at 373, 78 S.Ct. 819.

In this respect, Bilbo testified on direct examination that it was appellant who initiated conversation about the sale of moonshine, and that appellant dickered over price before he would agree to assist Bilbo in making a buy. Bilbo...