United States v. Harvey Lee Little , 227 F. App'x 861 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 5, 2007
No. 06-13800 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-20013-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HARVEY LEE LITTLE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 5, 2007)
Before DUBINA, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Harvey Lee Little appeals his convictions for possession with intent to
distribute marijuana and possession of a firearm by a convicted felon. He contends
on appeal that he was denied a fair trial because the district court (1) erroneously
admitted irrelevant and prejudicial evidence; and (2) erred when it refused to give
the jury that convicted him an instruction on the defense of entrapment.
(1)
At Little’s trial, the government presented evidence that Little met a
confidential informant (“CI”) and an undercover agent on a neighborhood street
where Little produced marijuana and a pistol, and offered to sell these items to
them. During this encounter, the three discussed a possible home invasion robbery
to steal cocaine, at the suggestion of the undercover agent. At trial, Little objected
when the agent began to describe how the robbery would take place. Little argued
that the evidence was not only irrelevant, but also that its probative value was
substantially outweighed by its prejudice, and therefore inadmissible pursuant to
Fed. R. Evid. 403. The court sustained the objection and provided the jury with a
limiting instruction. Little did not object to this instruction, which informed the
jury not only that Little was not charged with such an offense, but also that such an
offense was never actually committed. Little now argues that the admission of this
evidence rendered his trial unfair, as it involved a serious crime that tended to
suggest his guilt on an inappropriate basis.
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After a careful review of the record, as well as the parties’ briefs, we find no
reversible error. Rule 403 is an “extraordinary remedy . . . which should be used
sparingly since it permits the trial court to exclude concededly probative evidence.”
United States v. Wright, 392 F.3d 1269, 1276 (11th Cir. 2004), quoting United
States v. Fallen, 256 F.3d 1082, 1091 (11th Cir. 2001)). The court cured any
unfair prejudice it caused when it told the jury that Little was not charged with the
planned robbery. Any unfair prejudice that might have existed was mitigated by
the district court’s limiting instruction, which the jury is presumed to follow. See
United States v. Kennard, 472 F.3d 851, 858 (11th Cir. 2006), petition for cert.
filed, (March 14, 2007) (No. 06-10149). Moreover, any error would be harmless
as there was more than sufficient evidence in the record to support Little’s
conviction without considering the evidence of the planned robbery.
(2)
We also find no merit to Little’s argument that the district court erred when
it refused to give the jury instruction on entrapment.
Little testified that the confidential informant had called him at least 200
times, for more than two years, to try to sell him guns and drugs, and that he was
therefore entitled to a jury instruction on entrapment. In order to warrant an
instruction on entrapment, a defendant must provide “evidence sufficient to raise a
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jury issue 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.” United States
v. Alston, 895 F.2d 1362, 1367 (11th Cir. 1990). The entrapment defense consists
of two elements: (1) “government inducement of the crime,” and (2) lack of
predisposition on the part of the defendant.” United States v. Ryan, 289 F.3d 1339,
1343 (11th Cir. 2002).
As to the marijuana count, even viewing the evidence in a light most
favorable to Little, the district court did not err by finding that Little was “ready,
willing [,] and able to break the law,” and the government merely provided an
opportunity. Little, who had previously been convicted of possession with intent
to distribute marijuana when he was found with “59 small baggies” of marijuana,
did not resist the transaction while speaking to the detective on the day of the
offense. In addition, Little himself testified that he had regularly purchased
marijuana from the CI.
As to the firearm count, since Little withdrew his request for an entrapment
instruction, the issue is waived and we will review it only for plain error. United
States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508
(1993). Little does not point us to any current law that would make the failure to
give an entrapment instruction, in the absence of a request to do so, reversible
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error. Nor are we able to find that the failure to give the instruction at Little’s trial
affected his substantial rights. Therefore, there is no plain error.
After considering the two issues presented by Little on appeal, we find that
he was not denied a fair trial.
AFFIRMED.
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