UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-40656
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CHARLES EVERETT BILLS,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
(4:93-CR-62-1)
January 28, 1997
Before WISDOM, KING, and SMITH, Circuit Judges.
PER CURIAM:*
In this appeal, we are asked to review a jury’s finding that the defendant, Charles Everett
Bills, was not entrapped by federal agents in his arrest for various drug trafficking offenses. The
defendant further asserts that federal prosecutors violated the Jencks Act by not producing a
transcript of prior testimony by one of the government’s witnesses. Having thoroughly reviewed the
record and the testimony in question, we AFFIRM.
I.
*
Pursuant to Local Rule 47.5, the court has determined t hat this opinion should not be
published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.
The jury’s finding that the defendant was not entrapped may only be disturbed if we
conclude that no rational jury could have found, beyond a reasonable doubt, that the defendant
was predisposed to commit the offenses.1 We must view every fact in the light most favorable to
the jury’s verdict.2 A review of the record reveals ample evidence against the defendant.
Moreover, the defendant’s entrapment theory was supported solely by his own testimony. As
such, a rational juror could easily have found that the defendant was not entrapped, but rather
possessed the required predisposition to commit the instant offenses.
II.
Courts should be hesitant to conclude that the defense could not have effectively utilized a
producible statement had it been properly in their possession.3 Here, the government failed to
produce a transcript of prior testimony by Officer Robinson. Such material is arguably a
“statement” within the purview of the Jencks Act.4 Failure to produce a statement that is required
to be so produced under the Jencks Act is harmless error, however, where there is no “substantial
inconsistency, contradiction or variation” between the prior statements and the witnesses trial
testimony.5 Having reviewed Officer Robinson’s testimony at trial and his testimony from the
revocation hearing, we find no such inconsistency. We find, further, that the evidence was not
1
United States v. Rodriguez, 43 F.3d 117, 126 (5th Cir.), cert denied, 115 S.Ct. 2260
(1995).
2
Id.
3
Rosenberg v. United States, 360 U.S. 367, 375-76 (1959).
4
18 U.S.C. § 3500.
5
United States v. Keller, 14 F.3d 1051, 1055 (5th Cir. 1994), quoting United States
v. Merlino, 595 F.2d 1016, 1019 (5th Cir. 1979).
2
exculpatory. Hence, the defendant’s rights under Brady v. Maryland6 were not violated.
AFFIRMED.
6
373 U.S. 83 (1963).
3