United States v. Greenwood , 594 F. App'x 486 ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 11, 2014
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-1047
(D.C. No. 1:12-CR-00504-RBJ-1)
KENNETH GREENWOOD, (D. Colo.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.
A jury found Kenneth Greenwood guilty of two counts of possession of a
firearm by a prohibited person in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)
and two counts of possession of less than twenty-eight grams of cocaine base with
the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 851.
But the jury acquitted him of a third identical drug count. He moved for a judgment
of acquittal on the two drug counts, relying on his trial defense of entrapment. The
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
district court denied the motion. We affirm the court’s denial of the motion for
acquittal.
BACKGROUND
In August of 2012, a former convicted felon and Bloods gang member was
arrested on habitual traffic offender charges. Because he did not want to be
incarcerated, he contacted the Bureau of Alcohol, Tobacco and Firearms (ATF) and
the Denver Police Department (DPD) and entered into an agreement to act as a
confidential informant (CI). Under the agreement, his traffic charges would be
dropped, a pending drug case would be dismissed, and he would be compensated in
exchange for his assistance in controlled purchases of guns and drugs.
The CI informed the ATF and DPD that he could buy guns and drugs from his
friend Mr. Greenwood, another Bloods gang member. Over the course of two
months, the CI set up two deals with Mr. Greenwood to buy guns and three deals to
buy drugs.1
The first drug purchase occurred on September 13, 2012. The CI met
Mr. Greenwood at the location Mr. Greenwood directed and purchased one ounce of
cocaine for $1,200. This transaction occurred inside a vehicle. On September 14 and
18, the CI obtained guns from Mr. Greenwood. The second drug purchase occurred
on September 24, six days after the last gun deal and eleven days after the first drug
1
Mr. Greenwood does not challenge his gun convictions, so we assume he was
properly convicted of them.
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purchase. The CI and Mr. Greenwood met in the alley behind Mr. Greenwood’s
convenience store. The CI gave Mr. Greenwood $900 for ¾ of an ounce of crack
cocaine. Mr. Greenwood then went to his home to obtain an additional ¼ ounce.
After returning, he sold the rest of the drugs to the CI for $300 and asked the CI if he
needed anything else, indicating with gang slang that he had drugs for sale. The third
drug deal occurred on November 2 in Mr. Greenwood’s convenience store. The CI
purchased an ounce of crack cocaine for $1,200. Although Mr. Greenwood had
promised to sell the CI an additional ounce, he did not have the drugs at that time,
and the CI did not wait for the other drugs to be delivered.
Based on these five transactions, Mr. Greenwood was charged with two counts
of improperly possessing guns and three counts of selling crack cocaine. At trial, the
court instructed the jury on Mr. Greenwood’s defense that he was not guilty due to
entrapment. The jury, however, found him guilty of both gun counts and the
September 24 and November 2 drug counts. Mr. Greenwood moved for a judgment
of acquittal on the drug counts, arguing that because the jury found him not guilty of
the September 13 drug count, the court should find as a matter of law that the
government did not prove that he was not entrapped when he engaged in the latter
two drug deals. The court denied the motion, finding that the three drug transactions
were distinct, that the jury was properly instructed on entrapment, and that the
evidence supported a finding of guilt on the two later drug offenses.
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ANALYSIS
“We review de novo a district court’s denial of a motion for judgment of
acquittal, viewing all the evidence and drawing all reasonable inferences in the light
most favorable to the government.” United States v. Hildreth, 485 F.3d 1120, 1125
(10th Cir. 2007) (internal quotation marks omitted).
“[A] successful entrapment defense exists when the government (1) induces
the defendant to commit an offense that (2) the defendant was not predisposed to
commit.” United States v. Dyke, 718 F.3d 1282, 1291 (10th Cir. 2013). Once an
entrapment defense is raised, the government bears the burden to prove “beyond a
reasonable doubt that the defendant was not entrapped.” United States v. Ford,
550 F.3d 975, 982 (10th Cir. 2008). If the government disproves either element, the
entrapment defense fails. Id.
“Entrapment exists as a matter of law only if the evidence of entrapment is
uncontradicted.” United States v. Nguyen, 413 F.3d 1170, 1177 (10th Cir. 2005)
(internal quotation marks omitted). There must be “undisputed testimony” showing
“conclusively and unmistakably” that the government induced the defendant to
engage in criminal conduct. Id. at 1178 (emphasis and internal quotation marks
omitted).
Mr. Greenwood argues that the district court erred in denying his motion for
judgment of acquittal because the evidence at trial showed he was entrapped as a
matter of law with respect to the September 24 and November 2 drug transactions.
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Relying on United States v. Beal, 961 F.2d 1512 (10th Cir. 1992), he contends that all
three drug transactions were part of the same course of conduct resulting from the
CI’s original inducement.
In Beal, 961 F.2d at 1513, a jury found the defendant not guilty of a first drug
count, but guilty of a second. Based on the facts in that case, this court held that the
two drug deals, which occurred within approximately twenty-four hours of each
other, were part of a single, continuous course of conduct. Id. at 1516-17.
Beal is distinguishable. Even if, as Mr. Greenwood assumes, the jury found
entrapment with respect to the first transaction,2 we conclude that as a matter of law
he was not entrapped with respect to the second and third transactions. Unlike in
Beal, here there was a variation of the circumstances with each drug deal and the
deals occurred on different days, several days apart. As such, the second and third
transactions were separate and independent from the first drug deal and were not part
of a continuous course of conduct. Nor were they “closely connected transactions
without any intervening events.” Nguyen, 413 F.3d at 1180. Beal refused to adopt
“as a general rule that once entrapment occurs, a defendant’s subsequent willing acts
are immunized from culpability.” 961 F.2d at 1517; see also Ford, 550 F.3d at 982
2
We do not agree with Mr. Greenwood’s assumption that the jury found that he
was entrapped with respect to the first drug deal. The record does not conclusively
indicate why the jury chose to acquit Mr. Greenwood on the first drug count. It could
have found that the government did not prove the first count beyond a reasonable
doubt because the surveillance camera was obstructed during part of the first drug
deal. But the jury may have found as events unfolded that the evidence was
conclusive as to the second and third drug transactions.
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(“Even if a defendant was entrapped in one transaction, we do not automatically
assume all subsequent transactions between the government agent and defendant are
tainted.”).
If Beal does not apply, Mr. Greenwood argues that any predisposition he may
have had to sell drugs on September 24 and November 2 was the product of improper
government conduct and thus there was entrapment as a matter of law.
Predisposition occurs when a defendant is ready and willing to commit the crime he
was charged with. Dyke, 718 F.3d at 1291. It may be shown by evidence of prior
illegal acts that are similar. Hildreth, 485 F.3d at 1126. It may also be shown by
evidence that the defendant desired a profit, he was eager to participate in the crime,
he readily responded to the offer to participate, or he showed knowledge and
experience in selling drugs. See Dyke, 718 F.3d at 1291-92.
Ample evidence shows that Mr. Greenwood was predisposed to sell drugs. He
had prior convictions for selling drugs, which the government established before the
jury. At the time of his arrest, he possessed multiple cellphones, large amounts of
cash, guns, drugs, and drug-related items at his home, all typical of a drug distributor.
The CI testified that Mr. Greenwood sold guns and drugs because that is what gang
members do. Also, Mr. Greenwood offered drugs, among other things, to the CI
when the CI wanted to sell his car. After the second drug deal, he asked the CI if he
needed anything else, indicating that he had drugs for sale. And Mr. Greenwood
attempted to sell the CI an additional ounce of crack cocaine during the third drug
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deal. No evidence indicates reluctance by Mr. Greenwood to be involved in drug
dealing.
Unlike in Jacobson v. United States, 503 U.S. 540, 553-54 (1992), a case
Mr. Greenwood cites to support his argument, the evidence does not show that the
government induced a law-abiding citizen to commit a crime he never would have
committed if he had been left alone. Furthermore, similar to Beal, Jacobson does not
negate “an individualized treatment of the entrapment defense in multiple transaction
crimes.” Nguyen, 413 F.3d at 1179 (trial court gave entrapment instruction on first
two transactions, but not on third).
Viewing the evidence in the light most favorable to the government, we
conclude that Mr. Greenwood was not entrapped as a matter of law and therefore the
district court did not err in denying the motion for acquittal. Accordingly, we affirm
the district court’s judgment.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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