United States v. Dickerson ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5645
SHAFT DICKERSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Chief District Judge.
(CR-94-64)
Submitted: February 27, 1997
Decided: March 12, 1997
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Gregory B. English, ENGLISH & SMITH, Alexandria, Virginia, for
Appellant. Robert P. Crouch, Jr., United States Attorney, Karen B.
Peters, Assistant United States Attorney, Eric Chaffin, Third Year
Law Clerk, Roanoke, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Shaft Dickerson appeals his conviction for his role in a conspiracy
to distribute cocaine in violation of 21 U.S.C.§ 846 (1994). Although
Dickerson contends that his conviction is not supported by sufficient
evidence, his argument is couched in terms that suggest the district
court erred in failing to find that Dickerson was entitled to assert an
entrapment defense. Dickerson urges this court to reverse his convic-
tion on the grounds that the Government failed to prove that he was
predisposed to commit the offense.
Dickerson was arrested after a phony drug transaction arranged by
an informant with a government agent. Dickerson and his co-
conspirator agreed to purchase one kilogram of crack cocaine and
accept a second "fronted" kilogram for $10,000. The transaction was
memorialized on videotape, and the government agent and an addi-
tional informer testified as to the details of the transaction.
Arguing that his conviction is not supported by sufficient evidence,
Dickerson states that the evidence of record reveals"a convincing
lack of predisposition." This court is unaware of any support for the
proposition that predisposition is an element of the conspiracy offense
and Dickerson is not forthcoming with any. The essential elements of
a 21 U.S.C. § 846 (1994) conspiracy are (1) an agreement between
two or more persons to undertake conduct that would violate the laws
of the United States relating to controlled substances and (2) the
defendant's wilful joinder in that agreement. United States v. Clark,
928 F.2d 639, 641 (4th Cir. 1991). Taking the evidence in a light most
favorable to the government, as we must, Jackson v. Virginia, 443
U.S. 307, 319 (1979); United States v. Tipton , 90 F.3d 861, 889 (4th
Cir. 1996), there is ample evidence to prove beyond a reasonable
doubt that Dickerson wilfully entered an agreement with his co-
conspirator to buy what he believed was two kilograms of crack
cocaine from the undercover agent.
To the extent that Dickerson's appeal is more properly understood
as challenging the district court's declining to find that Dickerson had
established an entrapment defense, it is equally without merit. Entrap-
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ment is an affirmative defense which requires more than a scintilla of
evidence that the government induced the defendant to commit the
charged offense. United States v. Daniel, 3 F.3d 775, 778 (4th Cir.
1993) (citing United States v. Perl, 584 F.2d 1316, 1321 (4th Cir.
1978)). Once a defendant has presented evidence of inducement by
government agents, the government has the burden to prove beyond
a reasonable doubt that the defendant was independently predisposed
to commit crime. Jacobson v. United States, 503 U.S. 540, 549
(1992). "Inducement" is a term of art. It involves elements of govern-
mental overreaching and conduct sufficiently excessive to implant a
criminal design in the mind of an otherwise innocent party. Daniel,
3 F.3d at 778.
The record is virtually bereft of such evidence. The agent and
informant did no more than solicit and facilitate the transaction. The
conduct on their part was by no means either "overreaching" or "ex-
cessive." Because Dickerson failed to produce evidence of induce-
ment, the burden never shifted to the Government to prove beyond a
reasonable doubt that Dickerson was independently predisposed to
commit the crime. Consequently, the fact that the Government did not
attempt to introduce such evidence is of no moment.
Finding no merit to Dickerson's assignment of error, no matter
how it is characterized, we affirm Dickerson's conviction. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the Court and argument
would not aid the decisional process.
AFFIRMED
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