United States v. Mosley

• Decision Date: 05 July 1974
• Docket Number: No. 73-3336.,73-3336.
• Citation: 496 F.2d 1012
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fred MOSLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

496 F.2d 1012 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Fred MOSLEY, Defendant-Appellant.

No. 73-3336.

United States Court of Appeals, Fifth Circuit.

July 5, 1974.

COPYRIGHT MATERIAL OMITTED

J. D. Quinlivan, Jr., Mobile, Ala. (Court-appointed), Ian Frederick Gaston, Mobile, Ala., for defendant-appellant.

Charles White-Spunner, U. S. Atty., Irwin W. Coleman, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.

Before BELL, SIMPSON and INGRAHAM, Circuit Judges.

BELL, Circuit Judge :

In a jury trial, appellant was convicted for distributing and possessing with intent to distribute heroin in violation of 21 U.S.C.A. § 841(a)(1). His sole defense was entrapment.

Because the district court did not present the Bueno-type¹ issue to the jury, we reverse and remand for a new trial.

The salient consideration concerns the role of the government undercover agent in the case, a Deborah Reaves, an admitted heroin user. While in the company of Ms. Reaves on January 6, 1973, Larry Carver, an agent of the Bureau of Narcotics and Dangerous Drugs (B.N.D.D.) negotiated the purchase of .093 grams of heroin from appellant at a restaurant in Mobile, Alabama. This sale was the substance of the offense for which appellant was tried and convicted.

The sum of appellant's contention is that Ms. Reaves furnished appellant the heroin sold to Carver. Appellant said she induced him to sell it to a boyfriend with whom she claimed she lived and to whom she owed money (who turned out to be Agent Carver and who was advancing Ms. Reaves money for living expenses for the Government). Appellant testified that at the time of this purported inducement, Ms. Reaves and appellant were "making love most of the time" in a motel room. Ms. Reaves denied that she furnished the heroin to appellant and testified she and appellant were in the motel cutting the heroin down into individual dosage units. She said that she first met the appellant on that day when he came to her apartment with a friend, and while there he sold single dosage "hits" to Ms. Reaves and others present.

We have examined the record in detail and find that the evidence was sufficient to warrant jury instructions on the issue of entrapment. See United States v. Workopich, 5 Cir., 1973, 479 F.2d 1142. The burden is on the defendant to offer evidence sufficient to raise the issue for consideration by the jury ". . . 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." Pierce v. United States, 5 Cir., 1969, 414 F.2d 163, 168. Once such an issue is raised the burden is on the Government to prove beyond a reasonable doubt that the accused was predisposed to commit the crime charged. United States v. Workopich, supra ; Pierce v. United States, supra. The district court charged the jury on the basic question of entrapment, that is, of appellant's predisposition to commit the crime.² The jury apparently resolved the conflicting evidence in favor of the Government and concluded the appellant was predisposed to commit the crime. There the matter would normally end. E. g., United States v. Mitchell, 5 Cir., 1974, 493 F.2d 9.

This Circuit, however, held in United States v. Bueno, 5 Cir., 1971, 447 F.2d 903, that when a defendant testified that he obtained the contraband from a government undercover agent, the Government must produce the undercover agent to contradict the defendant's allegations in order to take the case to the jury. Ms. Reaves, the undercover agent, did in fact testify in this case. Then the jury must find beyond a reasonable doubt that the defendant did not obtain the contraband in question from the undercover agent. That question was not submitted to the jury here.

The Government contends that Bueno's vitality was eroded in United States v. Russell, 1973, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366. The majority in Russell, 411 U.S. at 434, 93 S.Ct. at 1644, 36 L.Ed.2d at 373, said they were "content to leave" the law of entrapment "where it was left" by the Court in Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848:

"The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, `a different question is presented 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.\'"

The Court in Russell held that entrapment does not exist as a matter of law when the Government furnishes the accused a legal and obtainable material that is used by the accused to manufacture contraband. Russell did not involve the Government's supplying the contraband itself. While this Court's decision in Bueno, supra, was noted by the majority in Russell, Bueno was not overruled.

Our view that Bueno is still binding as precedent is in accord with dictum in two decisions in this Circuit since Russell.³ In United States v. Workopich, 5 Cir., 1973, 479 F.2d 1142, 1144-1145, the Court observed that the Government in Russell supplied the defendant an ingredient that was itself legal, harmless and lawfully obtainable but was used to manufacture contraband. In Bueno, the unrefuted testimony was that the Government⁴ supplied the contraband itself. Since in Workopich the Government furnished United States currency that was legal in itself, the court determined that Russell rather than Bueno controlled.

In United States v. Oquendo, 5 Cir., 1974, 490 F.2d 161, the Court reversed and remanded as a result of an error in the charge. The district court there attempted to give an instruction on a Bueno-type issue, but error was committed in casting the jury's ultimate determination whether to convict or acquit in terms of a mere credibility choice between the undercover agent and the defendant. 490 F.2d at 165. The Court observed that the facts may require submission to the jury as separate concepts both the standard entrapment defense and a Bueno-type issue. Id. at 164-165, n. 8. Thus the law of this Circuit is that a defendant, where entrapment is an issue, may be acquitted for lack of predisposition, or, even though disposed, where the undercover agent supplies him with the contraband.

We therefore hold the facts sufficient in the instant case to warrant the dual instruction. It was error to deny the request for a Bueno-type instruction.

Because a new trial is thus required, we reach only one of appellant's other contentions.⁵ As a matter of guidance for the subsequent trial, it should be noted that by waiving the defense of insanity at the time of the offense, a defendant does not necessarily waive the relevance of his mental competency on the question of predisposition. Appellant attempted to introduce evidence that he had a head injury and brain surgery sometime prior to the time of this offense and as a result of this had a changed personality and was more easily swayed by others. All such evidence was excluded by the trial court. The district court ruled that appellant waived at a pretrial omnibus hearing the defense of insanity at the time of the offense. The difficulty of proving a defendant's predisposition has been widely observed⁶ and the courts have generally approved the admission of hearsay evidence, including hearsay reputation evidence, to prove a defendant's predisposition to commit the crime. United States v. McKinley, 5 Cir., 1974, 493 F.2d 547; United States v. Simon, 5 Cir., 1973, 488 F.2d 133. We cannot say that a head injury, a changed personality, and a resulting tendency to be easily swayed by others are not relevant factors to be considered on the issue of predisposition. This is not the same as attempting to prove insanity at the time of the offense under the Blake formulation, Blake v. United States, 5 Cir., (en banc), 1969, 407 F.2d 908. In fact, on the same court-provided form where appellant circled that he would not rely on a defense of insanity at the time of the offense appellant or his counsel also circled that the general nature of the defense was a "lack of mental responsibility." Evidence relevant to appellant's predisposition, one way or the other, should go to the jury for resolution with proper instructions.

Reversed and remanded.

1 United States v. Bueno, infra, 5 Cir., 1971, 447 F.2d 903.

2 "Now, in regard to the question of entrapment, the function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, a different question is presented when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the...