United States v. Wright , 333 F. App'x 772 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4538
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES WRIGHT,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:05-cr-00078-RDB)
Argued: March 27, 2009 Decided: April 28, 2009
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Danielle Tarin, WHITE & CASE, Washington, D.C., for
Appellant. James Thomas Wallner, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Jonathan
M. Mastrangelo, WHITE & CASE, Washington, D.C., for Appellant.
Rod J. Rosenstein, United States Attorney, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This case arises out of defendant’s participation in a
controlled drug buy. A jury found defendant guilty of one count
of conspiracy to distribute and possess with intent to
distribute 50 grams or more of cocaine base, 21 U.S.C. § 846, 21
U.S.C. § 841(a)(1) and (b)(1)(A); and one count of possession
with intent to distribute 50 grams or more of cocaine base, 21
U.S.C. § 841(a)(1) and (b)(1)(A), and aiding and abetting the
same, 18 U.S.C. § 2. Defendant appeals his conviction on
multiple grounds. We affirm the judgment.
I.
A.
On September 14, 2004, a group of law enforcement officers
met with Jeffrey Saffell, a confidential informant they had used
previously, and directed him to call defendant James Wright to
arrange a purchase of cocaine base. Saffell had known defendant
for two years and had obtained drugs from him in the past. Just
as he had done before, Saffell called defendant at home to set
up the buy. In less than five minutes, Saffell arranged to
purchase drugs from defendant and agreed on a time that he would
pick up defendant. The officers monitored and recorded this
phone call, but one of the officers subsequently lost the tape
recording. The officer testified that he lost the tape while
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moving when he was transferred back to headquarters the day
after the incident. There is no allegation that any bad faith
was involved.
Next, as is customary with a controlled buy, one of the
officers searched Saffell to ensure that he was not in
possession of any contraband, money, or drug paraphernalia. The
officers then gave Saffell $2,000 to purchase the drugs, a scale
to weigh the drugs, and a vehicle to use for the operation.
Saffell was wired with a radio transmitter and the vehicle was
equipped with a video recorder and radio transmitter.
Driving the government vehicle, Saffell then picked
defendant up at home, just as he had done during their prior
drug transactions. Almost immediately upon entering the car,
defendant asked Saffell “What’s up? What you trying to do?”
Saffell responded in slang that he was trying to get two ounces
of crack cocaine. Without any hesitation or delay, defendant
borrowed Saffell’s phone to call one of his drug suppliers --
one of his “sources” or “connects.” The source agreed to
provide the drugs, but said that it would take fifteen minutes.
This source took too long, so defendant called another one
of his sources. They arranged to meet, but the transaction was
further delayed because there were too many police officers in
the neighborhood where they had chosen to meet. While defendant
and Saffell were waiting for defendant’s sources, they drove
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around Baltimore to “burn time” and had an extensive, almost two
hour conversation about drug dealing, women, and other aspects
of their lives. They also made two stops: one at a convenience
store to buy cigarettes and one at a truck driving business so
that defendant could pick up a job application. Except for the
two stops, the entire conversation between defendant and Saffell
was recorded by the video camera in the car.
Ultimately, defendant was successful in setting up the drug
buy with Dante Couther, someone whom Saffell recognized from a
previous drug transaction arranged by defendant. Saffell
testified that they picked Couther up in the car and gave him
the $2,000; they then drove Couther to another location where he
obtained the cocaine; and finally, Couther gave the cocaine to
defendant who quickly examined it and then handed it over to
Saffell. The transaction was complete.
Saffell dropped off defendant and Couther, and then met up
with the police officers who had been monitoring the operation.
He gave the officers the two ounces (approximately 55 grams) of
cocaine that he had purchased through defendant. The police
immediately arrested defendant and Couther.
B.
A grand jury indicted defendant and Couther on one count of
conspiracy to distribute and possess with intent to distribute
50 grams or more of cocaine base, 21 U.S.C. § 846, 21 U.S.C. §
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841(a)(1) and (b)(1)(A); and one count of possession with intent
to distribute 50 grams or more of cocaine base, 21 U.S.C. §
841(a)(1) and (b)(1)(A), and aiding and abetting the same, 18
U.S.C. § 2. Defendant was tried before a jury beginning on
September 12, 2005. The government’s case-in-chief included
testimony from Saffell and the officers who arranged and
monitored the controlled buy. During Saffell’s testimony, the
government played portions of the videotape of the car ride.
The government also provided the jury with a transcript of the
video to use as an aid, but the transcript was not entered into
evidence.
During cross-examination, defendant’s counsel elicited
testimony from various witnesses to undermine Saffell’s
credibility, including that he breached the plea agreement he
was cooperating under by participating in unauthorized drug
transactions. Defendant’s counsel also pointed out that the
officers committed several minor errors in executing and
documenting this operation that deviated from police practice.
At the close of the government’s case-in-chief defendant
made a motion for judgment of acquittal on three grounds: (1)
the denial of due process premised on the government’s
mishandling of various evidence, including the loss of the tape
of Saffell’s initial conversation with defendant and alleged
inconsistencies in testimony; (2) the defense of entrapment; and
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(3) the sufficiency of the evidence. The court denied
defendant’s motion. Of relevance to this appeal, the court
rejected defendant’s entrapment claim because he had not met his
initial burden of presenting evidence that the government
induced him to commit the crime. In addition, the court ruled
that because defendant did not request a jury instruction on
entrapment, he could not argue entrapment to the jury.
Defendant also moved that the jury be instructed that it
could draw an inference that the lost tape was adverse to the
government’s case. Exercising its discretion, the court denied
the instruction because, as defendant conceded, there was no
evidence that the government had acted in bad faith when it lost
the tape. Defendant did not testify and did not present any
additional evidence.
The jury convicted defendant of both counts on September
15, 2005. He was later sentenced to 240 months of imprisonment.
Defendant appeals his conviction.
II.
All of defendant’s arguments relate in some way to the
defense of entrapment. Entrapment is an affirmative defense
that consists of “two related elements: government inducement of
the crime, and a lack of predisposition on the part of the
defendant to engage in the criminal conduct.” Mathews v. United
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States, 485 U.S. 58, 62-63 (1988); see also United States v.
Hsu, 364 F.3d 192, 198 (4th Cir. 2004) (citing Mathews, 485 U.S.
at 62-63). Here, defendant did not meet his initial burden of
producing “more than a scintilla of evidence” that the
government induced him to commit the crime. * See Hsu, 364 F.3d
at 200 (internal quotation marks omitted); see also United
States v. Sligh, 142 F.3d 761, 762 (4th Cir. 1998).
Inducement “is a term of art: it involves elements of
governmental overreaching and conduct sufficiently excessive to
implant a criminal design in the mind of an otherwise innocent
party.” United States v. Daniel, 3 F.3d 775, 778 (4th Cir.
1993); see also Hsu, 364 F.3d at 198 (quoting Daniel, 3 F.3d at
778). It requires “excessive behavior” by the government that
is “so inducive to a reasonably firm person as likely to
displace mens rea.” United States v. DeVore, 423 F.2d 1069,
1072 (4th Cir. 1970); see also United States v. Osborne, 935
F.2d 32, 38 (4th Cir. 1991) (quoting DeVore, 423 F.2d at 1072).
To support his claim of inducement, defendant first points
to the fact that the government initiated the drug transaction
and solicited him to broker the drug deal. It is well
established that this evidence is not sufficient because
*
Defendant’s claim that he was entitled to present an
entrapment defense to the jury also fails because defendant did
not request a jury instruction on entrapment.
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inducement “requires more than mere solicitation by the
government.” Hsu, 364 F.3d at 198; see also United States v.
Ramos, 462 F.3d 329, 334 (4th Cir. 2006); United States v.
Velasquez, 802 F.2d 104, 106 (4th Cir. 1986).
Next, defendant points to the statements Saffell made
during the car ride. Specifically, defendant alleges that
Saffell offered him money and sex with women to broker the deal,
played on defendant’s sympathy by stating that he needed money
for his daughter’s mother, invoked his love for defendant,
coached defendant on how to complete the transaction, and
assured defendant that no one had ever been caught with him.
Some forms of “persuasion or appeals to sympathy” can constitute
inducement, United States v. Squillacote, 221 F.3d 542, 569 (4th
Cir. 2000), but Saffell’s statements do not come close to the
types of pleading and persuasion that courts have held
constitute inducement.
In fact, Saffell’s statements do not involve pleading or
persuasion at all. They were not offered in response to any
reluctance by defendant to participate in the buy. The
statements all occurred after defendant had begun participating
in the transaction by calling one of his sources to supply the
drugs. And defendant did not later show any reluctance to
participate when he and Saffell were waiting for his sources to
come through. Defendant notes that he stated “once I get this
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money together it’s game over,” and that he picked up a job
application while they were waiting, but these facts show at
most that defendant was going to seek legitimate employment
after completing this deal, which was already underway.
Similarly, defendant claims that Saffell offered him money
to complete the deal, but payment for arranging a deal is normal
in the context of a drug buy and is not generally sufficient to
demonstrate inducement. See, e.g., United States v. Diaz-Diaz,
433 F.3d 128, 136 (1st Cir. 2005); United States v. Glover, 153
F.3d 749, 754 (D.C. Cir. 1998). This case is thus a far cry
from a situation where the government had to make multiple
requests “to overcome, first, petitioner’s refusal, then his
evasiveness, and then his hesitancy in order to achieve
capitulation.” Sherman v. United States, 356 U.S. 369, 373
(1958). See also Sligh, 142 F.3d at 763 (finding evidence of
inducement where the defendant “repeatedly ignored the agent’s
invitations to wrongdoing,” but “the agent nevertheless
persisted in her baiting of [the defendant]”).
Indeed, courts have found inducement only where the pleas
were extreme: where an undercover agent pleaded that “unless his
‘blood brother’ would help him land a cocaine deal he would be
killed,” United States v. McLernon, 746 F.2d 1098, 1113 (6th
Cir. 1984); where a government informant was in a narcotics
addiction treatment program and preyed on the defendant’s
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sympathy by repeatedly requesting narcotics because he was
suffering from withdrawal, Sherman, 356 U.S. at 373; and where
an undercover informant convinced the defendant to cooperate
based on “a tale of financial woes, the need to support a new
spouse, and terminal cancer, all the while knowing that
[defendant’s] sister recently had died of cancer,” United States
v. Nations, 764 F.2d 1073, 1080 (5th Cir. 1985). Saffell’s
statements simply do not rise to this level.
In short, none of the statements to which defendant alludes
would “persuade an otherwise innocent person to commit a crime.”
Ramos, 462 F.3d at 334 (quoting Hsu, 364 F.3d at 200). At best,
the statements amount to the sort of “mild persuasion” that we
have repeatedly held does not constitute inducement. See Hsu,
364 F.3d at 202 (holding that “passing mention” of “rewards” was
“mere banter” that at most amounted to mild persuasion); Daniel,
3 F.3d at 778-79 (holding that the government’s reminder “that
there was money to be made and promise to avoid arousing the
attention of the authorities” amounted to only mild persuasion);
see also Squillacote, 221 F.3d at 569 (recognizing that mild
persuasion is not inducement). The district court was right to
observe that this case was “no more than any routine controlled
buy,” and that “if the evidence in this case is sufficient to
carry the burden of showing government inducement,” courts would
be “hard pressed” to find a case that does not meet the burden.
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III.
Defendant’s next arguments also relate to his entrapment
defense, but they are premised directly on the claim that the
district court should have imposed spoliation sanctions on the
government for losing the tape of Saffell’s initial phone call
to defendant. First, defendant argues that the lost tape was
central to his entrapment defense and therefore the district
court should have sanctioned the government by granting his
motion for judgment of acquittal.
This argument too must fail. To begin with, the evidence
did not have “an exculpatory value that was apparent before the
evidence was [lost].” California v. Trombetta, 467 U.S. 479,
489 (1984). To the contrary, Saffell’s and the officer’s
testimony about the initial call -- that it was a controlled
call where Saffell arranged to purchase drugs from defendant --
shows that, in all likelihood, the tape would have further
inculpated defendant. Moreover, under Arizona v. Youngblood,
488 U.S. 51 (1988), “unless a criminal defendant can show bad
faith on the part of the police, failure to preserve potentially
useful evidence does not constitute a denial of due process of
law.” Id. at 58. Here, as defendant conceded, there was no
evidence that the government acted in bad faith.
Because defendant cannot meet the standard required for
reversal under Trombetta and Youngblood, he tries to import the
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civil standard for sanctions for spoliation of evidence. We
doubt this standard controls in the criminal context, but even
if it did, the severe sanction of an outright acquittal would
not be warranted. In view of the absence of any bad faith on
the part of the government and in light of the fact that the
exculpatory value of the evidence was anything but apparent, the
district court cannot be said to have abused its broad
discretion by failing to grant the significant sanction
defendant seeks. Defendant’s trial counsel recognized as much
when he stated: “where the issue has arisen in federal criminal
cases principally it is whether the Indictment should be thrown
out . . . . You have to establish bad faith for that and
obviously nobody is arguing that.” JA 423.
Finally, defendant argues that the district court should
have at least sanctioned the government by granting his motion
for an adverse inference instruction. The district court
denied defendant’s motion because there was no evidence that the
government acted in bad faith. This was not an abuse of
discretion because without bad faith there was simply no basis
for an inference that the tape was adverse to the government.
Indeed, the very case upon which defendant explicitly based his
proposed instruction requires “bad faith conduct” before an
adverse inference instruction can be given. United States v.
Wise, 221 F.3d 140, 156 (5th Cir. 2000).
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IV.
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
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