U.S. v. Morris ( 1992 )

UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 92-1076
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JERROLD MORRIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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(September 24, 1992)
Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.
DUHÉ, Circuit Judge:
Appellant Morris was charged with drug offenses arising out of
two separate transactions on different days. The jury acquitted
him of the charges stemming from the first transaction, but
convicted him of those stemming from the second. He appeals
contending that, since his sole defense was entrapment, his
acquittal on charges from the first event precluded his conviction
on charges from the second because, to acquit as to the first, the
jury must have found no predisposition, and predisposition must be
measured at a time before any government involvement. In the
alternative, he contends that the government's evidence of
predisposition was insufficient. We disagree with both contentions
and affirm.
His first argument has been squarely rejected by both the
Second and Ninth Circuits. U.S. v. North, 746 F.2d 627, 630 (9th
Cir.), cert. denied, 470 U.S. 1058 (1985); U.S. v. Smith, 802 F.2d
1119, 1125 (9th Cir. 1986); U.S. v. Khubani, 791 F.2d 260, 264 (2d.
Cir), cert denied, 479 U.S. 851 (1986). We agree with those
results and find those cases consistent with U.S. v. Wells, 506
F.2d 924 (5th Cir. 1975). In Wells we rejected the contention that
the jury should have been instructed that it could find that the
several drug sales were a "course of conduct" induced by government
activity. Id. at 926-927. We held that the district court
correctly instructed the jury that it should consider each count
separately, allowing it to consider whether Defendant was guilty of
any or all of the offenses charged. Id. at 926.
We further note that even if the verdicts be considered
inconsistent that is not ground for reversal. U.S. v. Pena, 949
F.2d 751, 755 (5th Cir. 1991).
Where the jury has rejected an entrapment defense, the
standard of review is whether, when viewing the evidence in the
light most favorable to the Government, a reasonable jury could
find, beyond a reasonable doubt, that the defendant was predisposed
to commit the offense. U.S. v. Arditti, 955 F.2d 331, 343 (5th
Cir. 1992). Here the version of events differs between the
testimony of the Government agent and Appellant. The jury was
entitled to credit the agent's testimony rather than that of the
Appellant. The agent's testimony was more than sufficient to carry
the Government's burden.
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AFFIRMED.
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