United States v. Sylvan A. Pinque ( 2000 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 00-1052
    ___________
    United States of America,                *
    *
    Appellee,                   *
    *
    v.                                 * Appeal from the United States
    * District Court for the District of
    Sylvan Anthony Pinque,                   * Minnesota.
    *
    Appellant.                  *
    ___________
    Submitted: October 17, 2000
    Filed: December 8, 2000
    ___________
    Before BEAM, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
    ___________
    MORRIS SHEPPARD ARNOLD, Circuit Judge.
    Sylvan Pinque was convicted on two counts of distributing cocaine base (crack)
    and two counts of conspiring to distribute and to possess crack with the intent to
    distribute it. See 21 U.S.C. § 841(a)(1), § 846. Mr. Pinque maintains on appeal that
    the trial court incorrectly instructed the jury on the conspiracy charges and that there
    was insufficient evidence of his predisposition to commit these crimes. We affirm.
    I.
    Mr. Pinque first maintains that the trial court erred in instructing the jury on the
    conspiracy charges. We would normally review the relevant instructions for plain
    error, since Mr. Pinque did not object to them in the trial court. See United States v.
    Johnson, 
    114 F.3d 808
    , 814 (8th Cir. 1997). The government contends, however, that
    Mr. Pinque proposed the very jury instructions to which he now objects, and, if this is
    true, Mr. Pinque would of course have waived his right to object to them. See United
    States v. Olano, 
    507 U.S. 725
    , 732-33 (1993); see also United States v. Lakich, 
    23 F.3d 1203
    , 1207 (7th Cir. 1994). But Mr. Pinque's proposed instructions are not on the
    record, so we are obliged to reject the government's contention.
    Mr. Pinque asserts that the trial court confused the jury by misdescribing the
    charges against him. While instructing the jury on the two conspiracy counts, the trial
    court stated that "[i]n order to sustain its burden of proof for the crime of possession
    of a controlled substance with intent to distribute, ... the Government must prove
    [certain] elements" (emphasis supplied). Because the counts for which the instruction
    was given actually charged conspiracy, the failure to mention conspiracy in this context
    was an obvious error.
    In order for this plain error to be reversible, however, it must have affected
    Mr. Pinque's substantial rights. See United States v. Young, 
    223 F.3d 905
    , 908 (8th
    Cir. 2000). We do not think that this happened in his case because it appears to us that
    it would have been impossible for the jury not to understand that Mr. Pinque was
    charged with conspiracy in the relevant counts. Three sentences before the one quoted
    above, the trial court's instructions stated that "[c]ounts 3 and 4 of the indictment charge
    the defendant with conspiracy." Conspiracy was also mentioned in the sentences
    immediately before and after the sentence to which Mr. Pinque objects. We must
    evaluate individual jury instructions in the context of the entire charge. See United
    States v. Paul, 
    217 F.3d 989
    , 997 (8th Cir. 2000). Looking at the entire charge, the
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    instructions indicated quite clearly that Mr. Pinque was charged with two counts of
    conspiracy, and thus we hold that his rights were not adversely affected by the error.
    II.
    The trial court instructed the jury that in order to convict Mr. Pinque of
    conspiracy the government had to prove that he "conspired to possess ... cocaine base
    crack," that he "knew that this substance was a controlled substance," and that he
    "intended to distribute this controlled substance." Mr. Pinque contends that this
    instruction was erroneous because the indictment charged him with a conspiracy to
    distribute and to possess with the intent to distribute, while the instructions describe
    only a conspiracy to possess with the intent to distribute. He asserts that this
    instruction allowed the jury to convict him without finding that he had entered into a
    conspiracy to distribute. Even if this is true, however, there was no prejudicial error:
    When more than one violation is charged conjunctively in an indictment, proof of any
    of the violations will sustain the conviction. See United States v. Vickerage, 
    921 F.2d 143
    , 147 (8th Cir. 1990).
    Mr. Pinque also asserts that the instructions erroneously failed to state that the
    conspiracy with which he was charged encompassed an agreement to distribute. It is
    true that the instructions used the word "conspired" only in stating that the defendant
    must have conspired to possess crack, while not explicitly stating that he must also
    have conspired to distribute. The jury was instructed, however, that the two relevant
    counts charged that "the defendant knowingly conspired with other persons ... to
    intentionally possess ... cocaine base crack, a controlled substance, with intent to
    distribute that substance." The jury was also properly instructed on the definitions of
    "conspiracy," "possess," and "distribute." As we have said, in evaluating jury
    instructions we look to whether, when taken as a whole, they fairly and adequately
    submitted the issue to the jury hearing the case. See United States v. Beckman, 
    222 F.3d 512
    , 520 (8th Cir. 2000). We believe, without reservation, that the jurors here
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    understood that in order to convict Mr. Pinque they had to determine that he was part
    of a conspiracy both to possess and to distribute crack.
    III.
    Mr. Pinque's final challenge to the jury instructions is that the trial court failed
    to state that in order to convict him of conspiracy, the jury had to find that he conspired
    with at least one person who was not a government agent. "It is of course a well-
    established rule that 'there can be no indictable conspiracy involving only the defendant
    and government agents and informers,' " United States v. Rios, 
    171 F.3d 565
    , 566 (8th
    Cir. 1999), quoting United States v. Nelson, 
    165 F.3d 1180
    , 1184 (8th Cir. 1999).
    Mr. Pinque, however, never argued at trial that government agents were his only
    co-conspirators. Nor did he request such an instruction or object to the absence of such
    an instruction. We therefore review the omission of the instruction for plain error. See
    United States v. Jorgensen, 
    144 F.3d 550
    , 560 (8th Cir. 1998).
    "There is plain error if the omitted instructions should have been given and the
    error affected the defendant's 'substantial rights,' " 
    id., quoting Olano,
    507 U.S. at 736.
    Mr. Pinque's substantial rights were not affected by the absence of this instruction,
    because the jury heard a great deal of evidence tending to show that Mr. Pinque
    conspired with at least one person who was not a government agent during each
    conspiracy for which he was convicted.
    With respect to the first conspiracy, an informant testified that, at Mr. Pinque's
    request, he received crack from a girlfriend of Mr. Pinque's while Mr. Pinque was
    present. The informant further testified that this girlfriend was a common source of
    drugs for Mr. Pinque. The same informant testified regarding the second conspiracy
    as well, indicating that he went with Mr. Pinque to another girlfriend's house to obtain
    more crack. An undercover police officer indicated that this same girlfriend was
    present when he purchased crack from Mr. Pinque later that day, and that the girlfriend
    was in fact carrying the crack. We believe that it is clear that the instruction that
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    Mr. Pinque now requests could not have changed the outcome of his trial, and thus that
    his substantial rights were not violated by its omission.
    IV.
    Mr. Pinque argued at trial that he was entrapped, having sold crack only because
    an undercover police officer asked for it, and the trial court gave an instruction
    appropriate to an entrapment defense. For Mr. Pinque to have been entitled to an
    entrapment instruction, however, he would first have had to show that a government
    agent induced him to commit the crimes. See United States v. Berg, 
    178 F.3d 976
    , 980
    (8th Cir. 1999). We think that Mr. Pinque failed to make this initial showing, as he
    cannot establish inducement merely by showing that the government " 'solicited,
    requested or approached [him] to engage in criminal conduct,' " United States v. Van
    Slyke, 
    976 F.2d 1159
    , 1162 (8th Cir. 1992), quoting United States v. Ortiz, 
    804 F.2d 1161
    , 1165 (10th Cir. 1986). In this case, Mr. Pinque immediately indicated his
    willingness to sell cocaine to the undercover police officer in response to an inquiry by
    the officer. While the officer may have asked for the cocaine several times, this was
    in response to a delay in obtaining the drugs and not due to any reluctance shown by
    Mr. Pinque. We hold, therefore, that Mr. Pinque was not entitled to have an
    entrapment defense submitted to the jury.
    There was, moreover, more than sufficient evidence before the jury to support
    a finding of predisposition on Mr. Pinque's part. Although the government must prove
    predisposition beyond a reasonable doubt, we review the evidence with respect to
    predisposition in the light most favorable to the government. See United States v.
    Brooks, 
    215 F.3d 842
    , 845 (8th Cir. 2000). There was evidence that Mr. Pinque's
    previous involvement with drug dealing was extensive. During his first meeting with
    the undercover police officer, for instance, Mr. Pinque boasted about his ability to
    obtain large amounts of cocaine. Witnesses testified that he was an experienced drug
    dealer and that he was quite familiar with the methods of drug dealers. He gave the
    undercover police officer a code number for paging him to purchase drugs; he also
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    showed his knowledge of cocaine by advising the officer that he should not purchase
    crack that had been mixed with too much baking soda. This evidence is more than
    sufficient to support a finding that Mr. Pinque was predisposed to deal crack.
    V.
    For the foregoing reasons, we affirm the judgment of the trial court.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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