United States v. Corber , 159 F. App'x 54 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
December 21, 2005
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT Clerk of Court
UNITED STATES of AMERICA,
Plaintiff-Appellee,
No. 05-3190
v.
(D.C. No. 04-CR-40003-01-SAC)
(D. Kan.)
TERRY L. CORBER,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL, McKAY and HENRY, Circuit Judges.
In this direct criminal appeal, Defendant-Appellant Terry L. Corber appeals
his conviction on one count of possessing crack cocaine with the intent to
distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). 1 Corber argues
*
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) and 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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
1
21 U.S.C. § 841(a)(1) makes it “unlawful for any person knowingly
or intentionally . . . to manufacture, distribute, or dispense, or possess with the
intent to dispense a controlled substance.” And § 841(b)(1)(B) provides for a
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only that the district court erred when it refused to instruct the jury on Corber’s
entrapment defense. Having jurisdiction to consider this appeal under 28 U.S.C.
§ 1291, we AFFIRM.
I. STANDARD OF REVIEW
“A defendant is entitled to an entrapment instruction whenever there is
sufficient evidence from which a reasonable jury could find entrapment.” United
States v. Scull, 321 F.3d 1270, 1274 (10th Cir. 2003) (quotation omitted).
Because Corber raised entrapment as a defense at trial and requested the trial
court instruct on that defense, we review de novo the district court determination
that there was insufficient evidence of entrapment in this case to instruct the jury
on that defense. See id. “For the purpose of determining the sufficiency of the
evidence to raise the jury issue, the testimony most favorable to the defendant
should be accepted.” Id. at 1275 (quotation omitted).
II. ANALYSIS
“To obtain an entrapment instruction, a defendant must establish two
elements: first, government agents must have induced the defendant to commit
the offense; and second, the defendant must not have been predisposed to commit
the offense, given the opportunity.” United States v. Nguyen, 413 F.3d 1170,
1
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sentence of not less than five or more than forty years for such an offense
involving five grams or more of cocaine base.
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1178 (10th Cir. 2005) (quotation, emphasis omitted), petition for cert. filed, (U.S.
Nov. 22, 2005) (No. 05-7929). Because in this case there was insufficient
evidence that the Government induced Corber to commit the offense to require
submitting that issue to the jury, we need not address whether Corber was
predisposed to commit the crime.
Inducement is government conduct which creates a substantial
risk that an undisposed person or otherwise law-abiding citizen would
commit the offense. Simple evidence that a government agent solicited,
requested, or approached the defendant to engage in criminal conduct,
standing alone, is insufficient to constitute inducement. Inducement
also will not be shown by evidence that the government agent initiated
the contact with the defendant or proposed the crime.
Id. (citation, quotation, alteration omitted).
In this case, viewing the evidence in the light most favorable to Corber, see
Scull, 321 F.3d at 1275, the evidence at trial established the following: In
February 2003, Corber was living with his grandmother, his father Alvin and his
uncle George. Corber’s Uncle Bobby would also frequently be at the home.
On February 13, 2003, Edward Radford was released from jail. Radford
and his wife Laura were paid government informants. After he got out of prison,
Radford began to call the Corber household, seeking to buy drugs. Radford
would purchase drugs from both Bobby and Alvin Corber.
Although Radford usually called the Corber household seeking to talk to
Bobby Corber, Radford also spoke to Terry Corber “a few times” between
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February 13 and 20. On those occasions, Radford sought to buy crack or
methamphetamine from Terry Corber, but Corber told Radford “that I couldn’t.”
After 8:00 p.m. on February 20, 2003, Radford called Corber again seeking
to buy crack. Although Corber did not have any crack, Corber told Radford that
Corber would bring some over to Radford’s apartment. 2 Corber then told his
friend, Larry White, that Radford wanted to buy drugs. White had drugs to sell
Radford, but White did not know where the Radfords lived. So Corber rode with
White to the Radfords’ apartment. When Corber and White arrived, within an
hour of Edward Radford’s call, White asked Corber to take the crack up to the
Radfords’ apartment and make the sale. In exchange for Corber’s conducting the
transaction, White gave Corber some methamphetamine. White gave Corber the
crack and then waited in the car while Corber went inside the Radfords’
apartment and sold Edward Radford the crack, as well as Corber’s
methamphetamine. According to Corber, White had already prearranged this sale
with Radford. At the end of his conversation with Radford, Corber told Radford
“there’s more where that came from.”
Radford’s calls to Corber soliciting crack were insufficient, alone, to
establish that the Government induced Corber to sell crack to Radford. See
2
Corber later testified, however, that he instead told Radford “no”
when Radford asked to buy crack.
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Nguyen, 413 F.3d at 1178; Scull, 321 F.3d at 1275. Further, Corber’s own
testimony established that he agreed to conduct the drug sale in exchange for
White’s giving Corber methamphetamine. There was, then, no evidence at trial
suggesting that the Government induced Corber to sell crack cocaine. The trial
court, therefore, did not err in refusing to instruct the jury on Corber’s entrapment
defense.
For these reasons, we AFFIRM Corber’s conviction.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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