United States v. Jones
| Decision Date | 14 May 1973 |
| Docket Number | No. 72-2473.,72-2473. |
| Citation | 473 F.2d 293 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Minor JONES, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Howard Oliver, Montgomery, Ala. (Court Appointed), for defendant-appellant.
Ira DeMent, U.S. Atty., David B. Byrne, Jr., Asst. U.S. Atty., Montgomery, Ala., for plaintiff-appellee.
Before GODBOLD, DYER and CLARK, Circuit Judges.
Certiorari Denied May 14, 1973. See 93 S.Ct. 2280.
This appeal is from a conviction of conspiracy to violate liquor laws.
We reject the contention of defendant that entrapment was established as a matter of law entitling him to a judgment of acquittal. This circuit has followed the classic formulation of United States v. Sherman, 200 F.2d 880 (2d Cir.1952), that entrapment presents two separate issues of fact, first, whether there was governmental inducement, and, second, if there was inducement whether the defendant was ready and willing to commit the act without persuasion. Pierce v. United States, 414 F.2d 163, 166-167 (5th Cir. 1969), cert. denied, 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 425 (1969). The evidence of governmental inducement, consisting of conduct by the government creating a substantial risk that the offense would be committed by a person other than one ready to commit it, Pierce, supra, 414 F.2d at 168, was sufficient that it would have been necessary to grant a motion for judgment of acquittal if there had not been other evidence tending to show readiness and willingness to commit the act without persuasion. Evidence of willingness may include, but is not limited to, proof of prior offenses and predisposition. It also may include evidence of eagerness to deal in the transaction in issue if a jury could conclude that such eagerness was not itself a product of the inducement whose impact on the mind of the defendant is in question.1
The relevant evidence is as follows. A government undercover agent operating in the Columbus, Georgia, area was asked to assist other agents in securing the arrest and conviction of E. T. Green, an alleged violator living in the rural community of Union Springs, Alabama, not far distant from Columbus. The agent made a trip to Union Springs and sought to purchase liquor from Green, but Green would not deal with him. He then secured part-time employment at a barber shop in Columbus where another of the employees was the defendant, who was part-time barber and part-time minister. Defendant had grown up in Union Springs and had family connections there. After the agent had come to know defendant somewhat better he approached defendant and told him that he was in the liquor hauling business and inquired if defendant knew any source of supply. The agent stated that "he defendant told me that he knew an individual who I could get as much as I wanted from," that defendant told him that he defendant knew potential customers who would take a large quantity, and that defendant told him that "he knew somebody who could get me as much as I wanted."
At a later date the agent planned a trip to Union Springs and, without telling defendant the purpose offered him a ride, and defendant accepted. En route the agent told defendant that he was returning empty moonshine jugs and brought up the question of where he could get some whiskey cheap. Defendant responded with the name of E. T. Green and stated what he thought Green's price was (which turned out to be erroneous). They proceeded to Union Springs, arranged through an intermediary for a buy from Green, delivered the empty jugs to another violator, then returned to pick up their buy. The intermediary informed them that Green had been there and had left word that "he would only deal with Reverend Minor Jones, Jr." Green appeared on the scene, Green and defendant left together to get the liquor, and defendant returned with it in the agent's car. The agent and defendant left and proceeded to Columbus with the illegal liquor. En route defendant asked the agent for the keys to the trunk and stated that if they were stopped he would display his minister's license and would say that he was chauffeuring for the agent. All that defendant received from the agent for his participation was ten dollars.
From this testimony a jury could infer that the defendant was all too eager to be a participant in the transactions and could conclude on the basis of all the evidence that he was not entrapped. Jones expresses indignation that the agent took advantage of apparent friendship and involved him in a transaction directed at catching Green and netting defendant only ten dollars and a criminal conviction. While it is plain that the main focus was on Green this is not to say that others may not be swept up in the pursuit. The jury could infer from defendant's original ready responses to the agent, his steering of the agent to Green, Green's statement that he would only do business with Jones, and defendant's joint trip with Green to pick up the liquor, that defendant was not only an outsider willing to be involved but actually an insider whose precise relationship to Green was unrevealed.
At sentencing, and before sentence was imposed, the defendant said to the court that he had never been in trouble before. The court then stated, The judge asked for the sentencing report, and a colloquy with defendant ensued, obviously based on the contents of the report.
In that dialogue there was discussion of two minor offenses on which defendant said he had been charged but not convicted. The court then inquired about a conviction for operating a lottery, and defendant, Minor Jones, Jr., explained the offender had been his father, Minor Jones, Sr. To this the court responded, "that is your daddy; all right; I am glad I asked you these questions, then." Next the judge asked: The defendant replied affirmatively, and the court responded,
After sentence was imposed defense counsel moved to be allowed to inspect the presentence report on the ground that defendant had only convictions such as minor traffic violations and none for serious offenses, that the revealed errors in the report led to the inference that it might contain other errors which materially influenced the court in assessing sentence, and that the uncertainty could be laid to rest only by inspection of the report. The trial judge ordered a supplemental presentence report, and, after receipt of it, entered an order denying the motion, noting that prior to sentencing he had accepted defendant's repudiation of the two convictions, and that the supplemental report verified the correctness of defendant's repudiation. The order also recited:
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...the defense does not violate due process. 11 See, e.g., United States v. Alexander, 498 F.2d 934, 935 (2d Cir. 1974); United States v. Jones, 473 F.2d 293, 296 (5th Cir.), denied, 411 U.S. 984, 93 S. Ct. 2280, 36 L. Ed. 2d 961 (1973); United States v. Dockery, 447 F.2d 1178, 1182-83, 145 U.......
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