UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-41204
LARRY WAYNE REESE,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
(G-96-CV-13)
November 5, 1998
Before REYNALDO G. GARZA, STEWART, and PARKER, Circuit Judges
PER CURIAM:*
Petitioner appeals from the district court’s grant of summary
judgment which resulted in the denial of his petition for habeas
corpus. For the following reasons, we affirm the summary judgment.
I. Background and Procedural History
Larry Wayne Reese (“Petitioner”) was convicted of delivery of
a controlled substance after a jury trial in Texas state court and
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
sentenced to 70 years imprisonment.2 Reese was arrested in a
police sting operation when a police informant named Dal Bosco and
an undercover police officer purchased drugs from Reese. At the
time, another police officer provided police “back-up,” and
observed the transaction from afar.
The police informant, Dal Bosco, asserted his Fifth Amendment
privilege and refused to testify at Reese’s trial. The trial judge
upheld Dal Bosco’s right to assert the privilege, and did not
require him to take the witness stand. Because neither Reese nor
Dal Bosco testified at trial, the only evidence of the actual drug
transaction was elicited from the two police officers. The officer
who participated in the transaction testified that he and Dal Bosco
arrived at the scene, Reese showed them a baggie containing drugs,
the officer and Reese then haggled over price, Reese reached into
his pocket and produced a small box containing several other
baggies, and sold one of the baggies to him. Based primarily on
the officer’s testimony, Reese was convicted.
Reese filed a motion for new trial, primarily asserting that
the trial court had erred in allowing Dal Bosco to assert his Fifth
Amendment privilege. Reese contends that if Dal Bosco had been
compelled to testify, he could have established an entrapment
defense for Reese. At the hearing, Dal Bosco again asserted his
Fifth Amendment privilege, but this time, he did answer certain
questions asked of him. In Dal Bosco’s limited testimony, he
2
The jury found a prior conviction alleged for enhancement of
punishment to be true and assessed punishment of imprisonment for
seventy years and a $10,000 fine.
2
stated that when Reese was first approached by Dal Bosco and the
undercover police officer, Reese said, “Don’t mess with me.”
However, Dal Bosco also went on to corroborate the officer’s
testimony that (1) he and the officer rode to the area together;
(2) Reese first handed him the drugs and he returned them to Reese;
(3) the officer and Reese haggled over the price of the drugs; and
(4) Reese produced a small box with baggies of cocaine in it. None
of Dal Bosco’s testimony at the new trial hearing contradicted
either of the officer’s trial testimony. Reese’s motion for new
trial was denied, and his conviction was affirmed on direct appeal.
The state court of appeals concluded that any error in sustaining
Dal Bosco’s privilege was harmless, based on the fact that his
testimony at the new trial hearing “was fairly reflective and
cumulative” of the undercover officer’s testimony. The appellate
court also found that no new or different evidence would have
resulted from Dal Bosco had he been compelled to testify at trial.
The Texas Court of Criminal Appeals granted a petition for
discretionary review and remanded for a determination whether the
error of allowing the informant to assert his Fifth Amendment
privilege was harmless. On remand, the state appellate court again
found that the error was harmless and affirmed the conviction.
Reese subsequently filed a federal petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. The district court accepted
the recommendations of the magistrate and granted summary judgment
for the respondent on the basis that any error committed by the
trial court was, at best, harmless error. After this court granted
3
Reese a certificate of probable cause, see Green v. Johnson, 116
F.3d 1115, 1119-20 (5th Cir. 1997)(required under pre-AEDPA habeas
law), he now petitions this court to reverse the district court’s
summary judgment and grant his writ of habeas corpus.
II. Discussion
On appeal, Reese brings two points of error against the
district court’s grant of summary judgment.3 We will discuss them
separately.
First, Reese contends that the district court’s ruling that
upheld Dal Bosco’s privilege as harmless error deprived Reese of
his right to secure witnesses on his behalf and his right to
meaningful cross-examination. Reese further contends that had he
been able to develop Dal Bosco’s testimony, he would have been able
to prove the defense of entrapment.
We have previously held that “[i]n reviewing the grant of
summary judgment in a habeas case, we presume that the state
court’s findings of fact are correct unless there is affirmative
proof that these findings are inadequate.” Teague v. Scott, 60
F.3d 1167, 1169 (5th Cir. 1995). Therefore, we accept the Texas
appellate court’s finding that no new or different evidence would
have been produced had Dal Bosco been compelled to testify at
trial. We will therefore only consider the evidence already
offered by Dal Bosco’s at the hearing on Reese’s motion for new
trial.
3
Reese has listed four “issues” on appeal, however, two of the
issues are redundant and already covered in his two points of
error.
4
Entrapment is an affirmative defense that requires a defendant
to show: (1) that he was induced to commit a criminal act by a
government agent, and (2) that he was not predisposed to commit the
act without the inducement. See United States v. Pruneda-Gonzalez,
953 F.2d 190, 197 (5th Cir. 1992). While Dal Bosco’s statements
that he heard Reese say, “Don’t mess with me,” could possibly
indicate some hesitation by Reese to sell the drugs, that evidence
goes only to the issue of government inducement. The two officers
that testified at trial, as well as Dal Bosco’s corroborating
testimony at the motion for new trial overwhelmingly establish that
Reese would not be able to overcome the “no predisposition” prong
of the entrapment defense. We therefore agree that as a matter of
law, Reese could not prevail on his entrapment defense, and
therefore any error by the trial court in allowing Dal Bosco to
assert his Fifth Amendment privilege was harmless. Because Dal
Bosco’s limited testimony presented nothing sufficient to support
Reese’s entrapment argument, the district court was correct in
granting summary judgment.
Reese’s second point of error is that the trial court erred by
failing to instruct the jury on the issue of entrapment. This
argument fails because Reese has failed to produce sufficient
evidence to warrant the submission of entrapment to the jury.4 The
main focus in evaluating an entrapment defense is on the
defendant’s predisposition to commit the offense rather than on the
4
We decline to address respondent’s contention that this
argument initially fails because it does not state a constitutional
issue cognizable on habeas corpus.
5
conduct of the government agents. See United States v. Mora, 994
F.2d 1129 (5th Cir. 1993). Here, Reese has failed to put on any
evidence, either of government inducement, or of “no
predisposition.” Dal Bosco’s statement that he heard Reese say,
“Don’t mess with me,” is not sufficient to meet Reese’s burden of
making a prima facie showing of entrapment. If it is even “some
evidence” at all, Reese’s statement would only go towards the issue
of government inducement. Therefore, because Reese failed to make
out a prima facie showing on the two elements of the entrapment
defense, it was not error for the trial court to refuse to instruct
the jury on entrapment. See United States v. Thompson, 130 F.3d
676, 688 (5th Cir. 1997).
III. Conclusion
For the foregoing reasons, we AFFIRM.
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