REVISED
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 96-20945
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BILLY MAC THOMPSON,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
December 4, 1997
Before MAGILL,* SMITH, and DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Billy Thompson appeals his conviction of attempting to murder
a federal judge. We affirm.
I.
While in jail, Thompson solicited inmate Stephen Gerber to
kill The Honorable Kenneth Hoyt, an able and respected judge of the
United States District Court for the Southern District of Texas.
*
Circuit Judge of the United States Court of Appeals for the Eighth
Circuit, sitting by designation.
Judge Hoyt had sent Thompson to jail on a civil contempt charge
related to a civil case in Judge Hoyt's court in which Thompson was
a party. In jail, Thompson met Gerber and asked him to hire a hit
man. Thompson expressed outrage that Hoyt had sent him to jail and
was generally displeased with the way his litigation was proceeding
in Judge Hoyt’s court.
Gerber, an admittedly unsavory character, wrote letters to the
FBI and to Judge Hoyt, alerting each of the threat Thompson posed.
Thereafter, the FBI began an investigation. Together, the FBI and
Gerber concocted a plan to catch Thompson. At the FBI’s prompting,
Gerber gave Thompson a phone number he could use to call someone
who would kill Judge Hoyt for him.
When Thompson refused to use the number, because he did not
want anyone to remember his voice, Gerber gave Thompson an FBI post
office box number. He told Thompson that for $20,000SS$2,000 down
and $18,000 after the hitSSGerber's agents would kill Judge Hoyt.
All Thompson had to do was to have someone send $2,000 to the post
office box.
Thompson contacted his sister and had her drive to a town
thirty miles away. There, she sent four $500 money orders to the
post office box via express mail; she signed the return address
“Sam Jones.”
Subsequently, the FBI arranged a taped conversation between
Thompson and Gerber in the prison library. During the meeting,
Thompson reiterated his desire to have Gerber’s hit men “cuff
[Judge Hoyt], chain his legs together, put weights on his feet and
2
dump his ass [in the ocean].” On the tape, Thompson acknowledged
that he had had $2,000 sent to the post office box. When Gerber
questioned whether Thompson would regret his decision or would seek
to back out of the deal at the last moment, Thompson repeatedly
stated that he would not.1
A few days after the first taped conversation, the FBI
attempted a second tape-recorded colloquy between the two inmates.
The tape recording device failed, however, producing only an
electronic noise.2
At trial, Gerber maintained that Thompson’s statements at the
second meeting were consistent with those at the first. Thompson
contends that the second conversation was exculpatorySSthat
Thompson had reached a settlement in his civil case by that time
and thus would have no reason to want to murder Judge Hoyt. Given
this evidence, the government obtained an indictment on three
charges: (1) using the mails to commit a murder for hire, in
violation of 18 U.S.C. § 1958; (2) soliciting the murder of a
federal judge, in violation of 18 U.S.C. §§ 373, 1114; and (3)
attempting to kill a federal judge, in violation of 18 U.S.C.
1
Before the first taped conversation, Gerber had received two handwritten
notes cryptically referring to $2,000, the digging of a swimming pool, and
Gerber’s uncle. At trial, a government handwriting expert testified that the
handwriting matched Thompson’s. Gerber testified that the cryptic references
related to Thompson’s solicitation to have Gerber’s agents kill Judge Hoyt.
2
There were also mechanical difficulties with the first recorded
conversation. In that conversation, there were two tape recordings: one on an
independent recorder in the library and another on a device transmitting the
conversation to FBI agents outside the prison. The latter tape failed when the
transmitter was unable to send its signal through the thick prison walls. The
former tapeSSafter government experts had enhanced itSSwas authenticated and
entered into evidence.
3
§ 1114.
Thompson presented a two-pronged defense. First, his attorney
adhered to a theory that Thompson had had his sister send $2,000 to
the post office box in an effort to bribe a Supreme Court clerk to
have his appeal docketed.3
Second, Thompson’s attorney attacked the veracity and
reliability of the government’s key witnessSSGerber.4 The defense
called numerous witnesses to testify that Gerber was a liar, a
conman, and generally not believable. Instead, the defense painted
a picture of Gerber's blackmailing Thompson to make Thompson
solicit Gerber to kill Judge Hoyt. Apparently, Gerber threatened
that if Thompson withdrew from the agreement to harm Judge Hoyt,
“serious mafia style harm” would befall Thompson's family.5
The government introduced enhanced tapes of the first recorded
conversation between Gerber and Thompson and properly authenticated
the original tape and the enhanced versions. The defense moved to
suppress the recordings as unreliable, arguing that the tapes were
inaudibleSSeven though enhancedSSand thus would lead to jury
confusion. The court reviewed the enhanced tapes and the original
and concluded that the enhanced tapes were, for the most part,
audible and not unduly confusing. Consequently, the court admitted
3
Thompson did not testify.
4
Thompson’s attorney also attempted to bolster Thompson's character by
having relatives testify, for example, that he was “a good man” and “went to
church.”
5
This theory seems to concede that there was an agreement between the two
men to have Judge Hoyt murdered, and it does not suggest the agreement originally
was the result of duress.
4
the enhanced recording for the jury’s consideration.
The government also provided a transcript of the enhanced
recording to aid the jury in listening to the tapes. The defense
contested the introduction of the transcript, contending that the
jury would be confused by the transcript and would use the
government’s transcriptSSrather than the tapeSSto make its decision.
Thompson also proffered that the government’s transcript was
inaccurate.
The court instructed the jury that the tapeSSnot the
transcriptSSwas the evidence for its consideration and that any
inconsistencies it found between the two should be resolved in
favor of the tape. Moreover, the court told the jury that it was
to use the transcript only when listening to the tape. Thompson
never introduced his own transcription to rebut the alleged
inaccuracies in the government’s version.
II.
A.
“Admission of tape recordings falls within the 'sound
discretion' of the trial court.”6 We will reverse a decision to
admit such evidence only if the court abuses its discretionSSthat
is, if it relies on an incorrect view of the law or on clearly
erroneous factual findings. We also review the decision to admit
6
United States v. White, 116 F.3d 903, 920 (D.C. Cir.) (per curiam)
(citations omitted), cert. denied, 1997 U.S. LEXIS 6650 (U.S. Nov. 3, 1997),
cert. denied, 1997 U.S. LEXIS 6660 (U.S. Nov. 3, 1997); accord United States v.
Lance, 853 F.2d 1177, 1181 (5th Cir. 1988).
5
a transcript of the recording, for use in aiding the jury, for an
abuse of discretion. See United States v. Wilson, 578 F.2d 67, 69
(5th Cir. 1978).
B.
Tape recordings are admissible in a criminal trial if they are
reliable. “The government has the duty of laying a foundation that
the tape recordings accurately reproduce the conversations that
took place, i.e., that they are accurate, authentic, and
trustworthy. Once this is done, the party challenging the
recordings bears the burden of showing that they are inaccurate.”
See United States v. Carbone, 798 F.2d 21, 24 (1st Cir. 1986)
(citation omitted).7 We will reverse the admission of tapes on the
ground that they are inaudible only if “the inaudible parts are so
substantial as to make the rest more misleading than helpful.”
Gorin v. United States, 313 F.2d 641, 652 (1st Cir. 1963); accord
United States v. Nixon, 777 F.2d 958, 973 (5th Cir. 1985).
Once recordings are admitted, the defendant can seek to
impeach them by showing, for example, that the voice on the tape is
not his; that the tapes do not recount the entire event; that they
have been altered; or that they are untrustworthy or contradictory.
The point is that the tapes themselves can be used to create a
reasonable doubt in the jurors’ minds.
7
Accord United States v. Polk, 56 F.3d 613, 631-32 (5th Cir. 1995); Lance,
853 F.2d at 1181. Hearsay problems are not a concern if the jury believes that the
defendant was one of the participants in the conversation; any statements he made
would be admissible as a statement of a party opponent. See FED. R. EVID. 801(d)(2).
6
C.
1.
The government properly authenticated the tapes.8 At trial,
FBI Agent Steger testified that he made the original recording of
the conversation between Thompson and Gerber that took place on
February 13, 1996. He tested the recording equipment both before
and after the tape was made, and it was operating properly. He
placed the recording device in the jail library and turned it on.
He also observed the conversation between Gerber and Thompson as it
took place. The tape began running before Gerber and Thompson
arrived and continued to run after they left.
Steger made several trips, every few minutes, to check to see
whether Gerber and Thompson were still talking. The conversation
lasted approximately forty-two minutes. After Gerber and Thompson
left the library, Steger retrieved the tape and turned it over to
the FBI clerk responsible for maintaining evidence.
2.
The government then produced evidence to authenticate the
enhanced tapes. FBI Agent Gregory Major, a signal processing
analyst, testified as an expert in the field of tape enhancement.
He stated that an enhanced tape is “an improvement in the
intelligibility of the voice information over the original
8
“The Federal Rules of Evidence provide that the requirement of
authentication 'is satisfied by evidence sufficient to support a finding that the
matter is what its proponent claims.'” Polk, 56 F.3d at 631 (quoting FED. R.
EVID. 901(a)).
7
recording through use of audio filters for purposes of playback
before a jury or for transcription purposes.” He testified that he
made an enhanced recording of the recording made by Steger and
explained in detail the procedure by which the tape recordings are
enhanced. He also stated that the noises that were filtered out of
the original recording were those from a public address system and
occasional knocking against the microphone.
Major explained that in making the enhanced version of the
recording, he did not add or delete any words. Gerber also
testified that the enhanced tapes accurately reflected the
conversation that took place between him and Thompson in the prison
library.
3.
The government also presented Steger’s testimony for purposes
of authenticating the transcripts. He testified that he had
prepared a transcript of the tape recording.9 In preparing the
transcription, Steger stated that he had listened to the tapes
several times and that, as a result, he had updated his transcript
repeatedly. Nothing indicates that Steger intentionally mis-
transcribed the recorded conversation.
4.
Thompson challenged the admissibility of the tapes, arguing
9
Steger also testified that he had prepared a second transcript with
Gerber’s aid. The court refused to admit this version, leaving the government
to rely on Steger’s first transcription.
8
that they were inaudible.10 The court conducted an in camera review
of the recordings and overruled the objections, stating that
“[d]efendant is correct that parts of the tape are unintelligible,
but other parts, especially of the enhanced tapes, can be easily
understood.”
5.
Although we give deference to the district court's findings,
we would reach the same result if we were reviewing the tapes de
novo. Although we acknowledge that the unenhanced tape is
difficult to comprehend, the enhanced version is “easily
understood.” It is possible to discern what was transpiring, even
without a transcript. The listener can hear Thompson talking about
the money orders and about dumping Judge Hoyt in the ocean. The
district court properly admitted the enhanced tapes into evidence.11
6.
Thompson never offered his own transcription to rebut the
accuracy of the government’s, nor did he point to any inaccuracies
in Steger’s work. Instead, he focused on the fact that Steger had
to listen to the tape many times before he could make a complete
transcription. This objection, however, is directed at the
10
The defense relied on a res ipsa loquitur argument in contesting the
tape’s unreliability. It pointed the district court to no indicia of inaccuracy,
but argued that listening to the tapes showed that they were unreliable and
confusing for the jury.
11
The court excluded the original tape.
9
reliability of the tape, not of the transcription.12
Moreover, the court instructed the jury that if it found any
inconsistencies, the recording controlled; any conflicting part of
the transcript was to be disregarded. The court did not abuse its
discretion by admitting into evidence the enhanced tapes and the
accompanying transcripts.
D.
Most of Thompson’s arguments attack the weight the jury gave
the tapes, rather than their admissibility. As noted above,
Thompson was entitled to impeach the accuracy of the tape recording
and the transcription in order to create reasonable doubt. Not
only could he attack Gerber’s credibilitySSand he didSSbut also he
could have attacked the accuracy of the recording devices, of the
enhancement process, and of the transcription procedure.13 To the
extent that he did so, the jury was entitled to credit the tapes
and Gerber’s testimony and to discredit Thompson’s attempts at
impeachment.
III.
Thompson claims that the district court violated his due
12
The government proffered another version of the transcription that
Gerber had helped to prepare. Thompson objected, and the court refused to admit
the evidence. See supra note 9.
13
The defense could have attempted to introduce the original tape in order
to attack the reliability of the enhancement and transcription processes. It did
not. Nor did it offer its own competing version of the transcription. Instead,
it argued that both were per se unreliable.
10
process right to a fair trial when, during its introduction of the
case to the jury, it referred to Thompson and Gerber as having
established a friendship. “To rise to the level of constitutional
error, the district judge’s actions, viewed as a whole, must amount
to an intervention that could have led the jury to a predisposition
of guilt by improperly confusing the function of the judge and
prosecutor. The judge’s intervention in the proceedings must be
quantitatively and qualitatively substantial to meet this test.”
United States v. Bermea, 30 F.3d 1539, 1569 (5th Cir. 1994)
(citations omitted).14
Tellingly, Thompson offers no specifics of the alleged due
process violation. That is because there was none. The government
correctly notes that the court’s comments, when read in context,
are not error.
Here is the context: The court gave a brief summary of what
each side was going to present. The court stated that “the
Government charges in this case . . . that [Thompson] then struck
up a friendship, acquaintanceship, call it what you will, with
another inmate, the man that's calledSS'Gerber' is his name.”
Thompson offers no evidence to show any bias by the court, nor does
he rebut what appears to be a rational explanation for the court's
comments, excerpted above, that Thompson claims are prejudicial.
14
It is uncertain what standard of review should apply here. If the
defendant fails to object at trial to the court's statements, plain error review
attaches. See United States v. Tolliver, 61 F.3d 1189, 1208 (5th Cir. 1995),
vacated and remanded on other grounds, 116 S. Ct. 900 (1996). Otherwise, a de
novo standard would seem to apply. In this case, even if we assume that Thompson
did object, his claims do not rise to the level of constitutional error.
11
Thompson's due process argument is meritless. There is no
indication of error, let alone the pervasive error needed to
establish a violation of a due process right to a fair trial.
IV.
A.
Thompson contends that the government committed a due process
violation by failing to preserve and produce a copy of a second
tape-recorded conversation between him and Gerber held a few days
after the first. The government contends that the tapeSSwhich
captured only an electronic noise because the recording equipment
malfunctionedSSwas made available to the defense and was inspected
by a defense expert.15
Thompson bears the burden of producing a sufficient record on
appeal. See United States v. Featherson, 949 F.2d 770, 774 (5th
Cir. 1991). Because he has failed to show any evidence that he did
not in fact inspect and test the second tape, he has no error of
which to complain.
B.
The government notes that Thompson's attorney may be confusing
the failed tape in the second recorded conversation with a second
tape that failed in the first recorded conversation. In the first
15
The docket sheet indicates that the court ordered the government to
produce the equipment and tape from the second attempted recording. There are
no further entries reflecting Thompson's attempts to enforce this order. Thus,
either the government complied with the order, or Thompson failed to raise an
objection to the government’s failure to produce in accordance with the order.
12
recorded conversationSSthe subject of part II aboveSSthe government
made two tapes: one in a recorder in the library, and another in
a transmitter also in the library. The tape in the transmitter
failed when the transmitter’s signal could not penetrate the thick
prison walls. See supra note 2. The tape in the recorder from the
first conversation encountered no mechanical malfunctions, however,
and was properly admitted. See supra part II. The tape from the
transmitter was subsequently destroyed by the government.
For purposes of part IV.B, we will assume that Thompson is
really arguing that the second tape from the first
conversationSSthat is, the one in the transmitterSSwas destroyed,
in violation of his due process rights.16 In order to establish a
due process violation from the government’s failure to preserve
evidence, a defendant must show that (1) government officials acted
in bad faith; (2) the evidence is material in showing the
defendant’s innocence; and (3) there is no alternate means of
demonstrating the defendant’s innocence. See Arizona v.
Youngblood, 488 U.S. 51, 56 (1988) (citing California v. Trombetta,
467 U.S. 479, 488-90 (1984)).
Thompson has offered no evidence that the second tape of the
first conversation17 was destroyed on account of any bad faith. And
16
Again, we are faced with a standard-of-review problem. The error of
which Thompson really claims is no error at all if he got what he wanted (the
second tape) before trial. The hypothetical error we will assume will also
assume a hypothetical objection by Thompson. These assumptions do not affect the
outcome of our analysis.
17
Even assuming that Thompson had shown that the FBI had destroyed the
tape of the second conversationSSthe one that recorded only an electronic
(continued...)
13
he has pointed to nothing to demonstrate that the second tape of
the first conversation captured exculpatory remarks that the first
tape did not.18 The government committed no due process violation
in this regard.
V.
Thompson challenges the tactics the government used when
dealing with his witnesses, Lawrence Carlton and Paul Gardner.19
Thompson alleges that at a bench conferenceSSoutside the jury’s
presenceSSthe government's attorney told defense counsel that
counsel would suborn perjury if Carlton were to testify as
planned.20 Thompson argues that the government interfered with
Gardner's testimony when, during the FBI's initial investigation of
the plot to kill Judge Hoyt, the agents informed Gardner and his
wife of the consequences of not telling the truth.
(...continued)
noiseSSThompson failed to meet the Youngblood factors. He demonstrated no malice
for the tape's destruction. He made no showingSSaside from his own
allegationsSSthat the tape of the second conversation was exculpatory. Finally,
he failed to allege that there were no alternate means by which he could
establish his innocence.
18
The third factor is mooted if we find the information sought was not
exculpatory. But even if we were to find the evidence to be exculpatory,
Thompson offered no evidence to show that he had no alternate means of
demonstrating his innocence.
19
Carlton was an inmate with Gerber and Thompson who testified about
Gerber’s bad reputation. Gardner is Thompson’s brother-in-law and testified
about Thompson's good character.
20
The government claims that, prior to testifying, Carlton indicated to
the government that what he was going to say was false. Thompson denies the
allegation.
14
A.
“Just as an accused has the right to confront the
prosecution’s witnesses for the purpose of challenging their
testimony, he has the right to present his own witnesses to
establish a defense. This right is a fundamental element of due
process of law.” Washington v. Texas, 388 U.S. 14, 19 (1967). To
make a showing that the government has infringed on this right, the
defendant must show that “the government’s conduct interfered
substantially with a witness's 'free and unhampered choice' to
testify.”21 “Because the existence of substantial interference is
a factual question, we may reverse the trial court’s decision only
if it is clearly erroneous.” Pinto, 850 F.2d at 932 (quotation
omitted).
B.
The government's conduct with respect to Carlton does not rise
to the level of a constitutional violation. The threats reached
only the defense lawyer, and Thompson makes no allegation that the
government ever told Carlton that if he testified, it would
prosecute him for perjury.
In an adversarial system, a lawyer cannot be immune from
warnings from his adversary. There is no indication that the
threat ever was transferred from the defense lawyer to the witness.
The threat, thus, could not have chilled Carlton's testimony. At
21
United States v. Pinto, 850 F.2d 927, 932 (2d Cir. 1988) (quoting United
States v. Goodwin, 625 F.2d 693, 703 (5th Cir. 1980)); accord United States v.
Dupre, 117 F.3d 810, 823 (5th Cir. 1997).
15
the most, it prevented Thompson's lawyer from eliciting answers
that he knew were false. Because the defense lawyer already had an
ethical obligation to the court not to elicit such responses,
Thompson has failed to establish any causal connection between the
government's actions and the alleged rights violation.
Even if the government's warning to defense counsel
constituted an interference with Thompson's right to call his own
witnesses, it is hard to see how it rises to the level of a
constitutional violation. The court sustained Thompson's
objections to the government's warning, instructing both lawyers
that the attorney would not be suborning perjury if Carlton were to
testify. The conversation occurred outside the presence of the
jury and of the witnesses. Accordingly, any fear defense counsel
had when he proceeded to examine Carlton was not justified.
C.
Thompson has failed to make the necessary showing that the
government's actions “interfered substantially” with Gardner’s
“'free and unhampered choice' to testify.” Pinto, 850 F.2d at 932
(quoting Goodwin, 625 F.2d at 703). The defendant bears the burden
of showing that testimony would have been different but for the
government’s actions.22 Thompson has made no such showing.
Thompson alleges that during one of the FBI's investigatory
interviews of Gardner and his wife, the agents warned them that if
22
Cf. United States v. Hatch, 926 F.2d 387, 395 (5th Cir. 1991) (holding
defendant's evidence insufficient to prove that government's actions caused a
defense witness not to testify).
16
they did not tell the truth, they could be arrested and jailed for
perjury. Thompson claims that these statements prevented Gardner
from giving all the testimony he otherwise would have provided.
The district court was correct to overrule any objections
Thompson's lawyer made in this regard.23 If anything, the record
shows that Gardner was undeterred by the FBI's statements. At
trial, he testified to the same account that he had provided the
FBI investigators when the inquiry began.
Thompson's challenge is also flawed because it assumes that
the government cannot tell a witness of the consequences of
committing perjury. That is not the law. “Granted, the government
told the witnesses that they had to testify truthfully and, if not,
they would go to jail. That procedure, however, even if carried
out in a caustic manner, is no cause to dismiss the indictment
against the defendants.” United States v. Hayward, 6 F.3d 1241,
1257 (7th Cir. 1993) (citation omitted). “There is nothing wrong
with the government informing witnesses of the consequences of
breaking the law.”24
VI.
Thompson attacks the sufficiency of the evidence supporting
23
The record does not indicate whether Thompson indeed objected.
Nevertheless, for ease of explanation, we will assume that he did and thus that
the clear error standard of review applies. This assumption does not affect the
outcome of our analysis.
24
United States v. Hayward, 772 F. Supp. 399, 406 (N.D. Ill. 1991), aff'd,
United States v. Hayward, 6 F.3d 1241 (7th Cir. 1993); accord United States v.
Viera, 839 F.2d 1113, 1115 (5th Cir. 1988) (en banc) (“A prosecutor is always
entitled to attempt to avert perjury and to punish criminal conduct.”).
17
his convictions. We will affirm if a reasonable trier of fact
could conclude that the elements of the offense were established
beyond a reasonable doubt, viewing the evidence in the light most
favorable to the verdict and drawing all reasonable inferences from
the evidence to support the verdict. The evidence presented at
trial need not exclude every reasonable possibility of innocence.
See United States v. Faulkner, 17 F.3d 745, 768 (5th Cir. 1994).
The evidence more than supports the convictions on all three
counts.
A.
On the first count, under 18 U.S.C. § 1958, a reasonable jury
could conclude beyond a reasonable doubt that Thompson (1) had
caused another to use the mails (2) with intent that a murder be
committed in violation of the laws of the United States (3) as
consideration for the receipt of pecuniary value. The jury
legitimately could credit Gerber's testimony and the tape recording
and disregard Thompson's attacks on both. In both, Thompson states
that he had his sister sendSSvia the mailsSSfour $500 money orders
to a post office box. It is evident from his comments to Gerber
that this money is a down payment on the murder of Judge HoytSSa
federal judgeSSin violation of 18 U.S.C. § 1114.
B.
On the second count, under 18 U.S.C. §§ 373 and 1114, a
reasonable jury could conclude beyond a reasonable doubt that
18
Thompson had (1) solicited another (2) with intent (3) to kill a
federal judge. The jury was entitled to credit Gerber's testimony
and the tape recording and to discredit Thompson's attempts at
impeachment. The evidence shows Thompson purposefully seeking
Gerber out to have Gerber kill Judge Hoyt.
C.
The evidence supports a conviction for the attempt charge
under 18 U.S.C. § 1114. “The crime of attempt requires the
Government to prove that the defendant (1) intended to commit the
underlying offense, and (2) took a 'substantial step,' beyond mere
preparation, toward committing that crime.”25 As noted above, a
rational jury could credit Gerber's testimony and the tape
recording to conclude, beyond a reasonable doubt, that Thompson
intended to commit the underlying crime. See supra part VI.B.
Thompson argues that his actions did notSSas a matter of
lawSSform a substantial enough step to constitute attempt. This
objection is meritless. The agreement called for $2,000 down and
$18,000 after the murder. Thompson sent the $2,000, then expressed
his desire that the murder take place as soon as possible.
According to Gerber, and on the tape, Thompson expressed neither
interest in backing out of the deal nor regret. The deal required
no more actions from Thompson in order for the murder to occur.
Thompson’s actions were not mere preparation. He went to the
25
United States v. Polk, 118 F.3d 286, 291 (5th Cir. 1997) (quoting United
States v. Mandujano, 499 F.2d 370, 376 (5th Cir. 1974)).
19
very brink of carrying out his plan. “Liability for attempt
attaches if the defendant's actions have proceeded to the point
where, if not interrupted, would culminate in the commission of the
underlying crime.” Polk, 118 F.3d at 291. A rational jury,
therefore, could conclude beyond a reasonable doubt that Thompson's
actions constituted an attempt on the life of Judge Hoyt.
VII.
Thompson claims that the evidence is insufficient to support
a jury finding that he had not been entrapped. “When a jury, which
was fully charged on entrapment, rejects the defendant’s entrapment
defense, the applicable standard of review is the same as that
which applies to sufficiency of the evidence.” United States v.
Rodriguez, 43 F.3d 117, 126 (5th Cir. 1995) (citation omitted).26
“Entrapment is an affirmative defense that requires a
defendant to show he was induced to commit a criminal act by a
government agent and that he was not predisposed to commit the act
without the inducement.”27 Once the defendant makes a prima facie
showing on these two elementsSSno predisposition and governmental
inducementSSthe court will give the entrapment instruction. The
government then bears the burden of showing beyond a reasonable
26
The district court gave the jury the Fifth Circuit’s pattern entrapment
instruction.
27
United States v. Pruneda-Gonzalez, 953 F.2d 190, 197 (5th Cir. 1992);
accord United States v. Wolffs, 594 F.2d 77, 80 (5th Cir. 1979). A successful
entrapment defense essentially negates the intent element of an intent-based crime,
thus making conviction impossible. Because we deal here only with an intent-based
crime, we need not consider entrapment issues concerning non-intent-based crimes.
20
doubt that the defendant was not entrapped. See United States v.
Byrd, 31 F.3d 1329, 1335 (5th Cir. 1994).
Because entrapment is the result of a jury finding of
governmental inducement and no predisposition, see Wolffs, 594 F.2d
at 80, a jury must necessarily find non-entrapment when the
government proves beyond a reasonable doubt either the existence of
predisposition or the non-existence of inducement.28 “That the
government bears the entire burden does not affect the fundamental
truth that entrapment can be disproved in one of two ways, either
by proving beyond a reasonable doubt that the defendant was not
induced, or by proving beyond a reasonable doubt that he was
predisposed to commit the crime.” El-Gawli, 837 F.2d at 147.29
A.
1.
On the first count, the evidence supports a finding of
Thompson's predisposition. “The active, enthusiastic participation
on the part of the defendant is enough to allow the jury to find
predisposition.” Rodriguez, 43 F.3d at 126-27.30 A reasonable jury
28
See United States v. Cervante, 958 F.2d 175, 178 (7th Cir. 1992); United
States v. El-Gawli, 837 F.2d 142, 147 (3d Cir. 1988)
29
Arguably, this court's pattern jury entrapment instruction misstates the
law: “If, then, you should find beyond a reasonable doubt . . . the defendant
was ready and willing to commit a crime . . . and that government officers . . .
did no more than offer the opportunity, then you should find that the defendant
is not a victim of entrapment.” FIFTH CIR. PATTERN JURY INSTRUCTIONS § 1.28, at 40
(West 1997) (emphasis added). Given the components of the law of entrapment, see
Pruneda-Gonzalez, 953 F.2d at 197, the instructions might more properly insert
an “or” for the emphasized “and.”
30
In United States v. Knox, 112 F.3d 802, 808 (5th Cir. 1997), a panel
(continued...)
21
could conclude beyond a reasonable doubt that Thompson was
predisposed (1) to use the mails (2) with intent that a murder be
committed in violation of the laws of the United States (3) as
consideration for the receipt of pecuniary value.
There is more than enough evidence to support the jury’s
finding of Thompson's predisposition with regard to the second two
elements of the “use of the mails” count. The jury could credit
Gerber's testimony and the tape recording (and the letters), and
discredit Thompson's attacks on that evidence. Gerber's testimony
and the tapes provide ample support for the inference that Thompson
was ready and willing to pay someone to kill Judge Hoyt.31
The defendant's predisposition with regard to the first
elementSSthe actual using of the mailsSSpresents a more complex
question. Thompson did not think up the sending of money orders
through the mails on his own. Rather, the government offered him
that opportunity by giving him a post office box address, and he
used it.
Although this question is somewhat closer, the evidence
(...continued)
held that “we must look not only to the defendant's mental state (his
'disposition'), but also to whether the defendant was able and likely, based on
experience, training, and contacts, to actually commit the crime (his
'position').” This holding is arguably in tension with the rule we announced two
years earlier in Rodriguez, stated in the text. The Knox predisposition holding
has been vacated pending review by the en banc court. See United States v. Knox,
120 F.3d 42 (5th Cir. 1997); 5TH CIR. R. 41.3.
31
A rational jury could have found beyond a reasonable doubt that Thompson
intended to have Judge Hoyt killed. After all, the core theory of the defense
was that Thompson had sent the $500 money orders to the post office box to commit
another illegal actSSbribing a Supreme Court clerk. A jury could credit this
willingness to commit a crime and discredit the defense's explanation of the
crime that Thompson intended to commit.
22
supports a finding of predisposition on this element of the use-of-
the-mails count. “Predisposition focuses on whether the defendant
was . . . willing to commit the offense before first being
approached by government agents.” United States v. Bradfield,
113 F.3d 515, 522 (5th Cir. 1997) (emphasis omitted).
The stark facts of this case show that Thompson was fully in
control of his options on how to proceed in the murder plot. When
given a phone number to call, Thompson had refused. Instead, he
intimated that he would prefer a more secure means to hire the
hitmen. As a result, the government agents offeredSSand Thompson
acceptedSSthe use of a post office box to which Thompson could send
the money to have Judge Hoyt killed.
The defense never offered any countervailing evidence to raise
a reasonable doubt that Thompson was not inclined to use the mails.
Thus, the jury could find that Thompson was willing to use the
mails before the government suggested it.32
2.
Even if the evidence failed to support a finding of
predisposition on the first count, the jury's finding of no
32
Even under Knox's the “predisposition-plus” standard, Thompson loses in
this case. A rational jury could conclude beyond a reasonable doubt that he had
the experience and the contacts “to actually commit the crime.” Knox, 112 F.3d
at 808. Gerber testified, and Thompson stated on the tape, that Thompson had
hired people before “to beat up bad people.” Indeed, in this case, Thompson
offers no evidence to show that he was not predisposed. Arguably, therefore, he
was not even entitled to the entrapment instruction in the first place.
In any event, the government proved beyond a reasonable doubt that there
was no governmental inducement. See infra part VII.A.2. That is enough to
negate the entrapment defense. See El-Gawli, 837 F.2d at 147.
23
governmental inducement is supported by the evidence. “Government
inducement consists of the creative activity of law enforcement
officials in spurring an individual to crime.” See id. (citation
omitted).
The FBI's providing Thompson with a post office box does not
amount to a “creative activity of law enforcement officials.”
Although the government's activity “need not overpower the
defendant's will,” see id., it must at least “spur” him to commit
a crime.
The government merely offered Thompson the opportunity to
carry out his plan. That the government gave him an avenue to
commit an illegal actSSan avenue itself that happened to be
illegalSSdoes not constitute inducement. Instead, under these
circumstances, the finding of inducement was a question of fact
properly left for the jury. Given the evidence presented, the
finding of no inducement is supported by the evidence.33
B.
1.
The evidence also supports the finding of predisposition on
the second and third counts. The predisposition issue hereSSthat
the evidence supports a jury finding that Thompson was already
disposed to pay someone to kill Judge HoytSSwas addressed and
33
Because the second and third elements of the first charge are similar
to those forming the basis for the second and third charged counts, the jury's
finding of no governmental inducement on those elements is discussed below in
part VII.B.2.
24
discussed above. See supra part VII.A.1 and note 31.
2.
A rational jury could also find beyond a reasonable doubt that
the government did not induce Thompson to commit the actions
charged in the second and third counts.34 The government's
presentation of an opportunity for a defendant to commit a crime,
without more, is not inducement. See Jacobson v. United States,
503 U.S. 540, 550 (1992); Bradfield, 113 F.3d at 522. The
government gave Thompson the chance to carry out his plan to have
Judge Hoyt killed. Government agents arrived and arranged to have
Gerber present Thompson with the opportunity to purchase a hit on
Judge Hoyt only after Thompson had indicated a willingness to
accept the deal.35 There is no credible evidence to suggest that
government agents “spurred” Thompson to solicit and to attempt a
murder of Judge Hoyt. To the contrary, the record strongly
supports an inference that Thompson, not governmental agents, was
the motivating force behind the means, terms, and goal of the deal.
AFFIRMED.
34
We also include in the discussion the second and third elements of the
first charged count. See supra note 33.
35
Gerber testifiedSSand a reasonable jury could concludeSSthat Thompson had
solicited Gerber in the murder-for-hire scheme before Gerber had notified the FBI
and had become a government operative.
25