United States v. Young

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1746

UNITED STATES,

Appellee,

v.

DARYL YOUNG,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

David J. Van Dyke, by Appointment of the Court, with whom

Berman & Simmons, P.A. was on brief for appellant.

Margaret D. McGaughey, Assistant United States Attorney,

with whom Jay P. McCloskey, United States Attorney, and Jonathan

R. Chapman, Assistant United States Attorney, were on brief for

appellee.

March 21, 1996

TORRUELLA, Chief Judge. Defendant-appellant Daryl
TORRUELLA, Chief Judge.

Young ("Young") challenges his criminal conviction, as well as

his resulting sentence imposed pursuant to the United States

Sentencing Guidelines (U.S.S.G.). Young was convicted with co-

defendant Dennis Johnson ("Johnson") (1) of conspiring to possess

with intent to distribute heroin in violation of 21 U.S.C.

841(a)(1), 841(b)(1)(C) and 846, and (2) of possession of heroin

with intent to distribute it in violation of 21 U.S.C.

841(a)(1) and 841(b)(1)(C). After the close of evidence in his

jury trial, he waived his right to trial by jury and submitted to

a verdict by the court. The district court found him guilty and

sentenced him to ninety-two months' imprisonment, to be followed

by five years of supervised release. We affirm both the judgment

and the sentence of the district court.

I. BACKGROUND
I. BACKGROUND

In December 1994, Young met Al Hendricks ("Hendricks")

while the two men were enrolled in a drug detoxification program

at a Maine hospital. At trial, Young testified that Hendricks

constantly talked about drugs, disrupting Young's therapy. Young

and Hendricks continued to communicate after Young had left the

detoxification program. Shortly thereafter, starting on

December 27, Hendricks, on his own initiative, taped twelve

conversations with Young.

On the first tape, Young told Hendricks he had sent a

car to retrieve twenty-one grams of an unspecified substance, and

when Hendricks said he wanted some drugs, Young and Hendricks

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agreed on a meeting place. On January 5, 1995, Hendricks

contacted the Drug Enforcement Agency (DEA). On January 9, 1995,

Hendricks was formally enrolled as an informer. Subsequently,

Hendricks and DEA Agent Henry J. O'Donoghue ("Agent O'Donoghue")

arranged a deal whereby Young and Johnson would travel to the

Bronx to purchase heroin, which they would then resell to Agent

O'Donoghue (the "controlled buy"). On January 13, 1995, Young

was arrested at the Greyhound Bus terminal in Portland, Maine,

after he conveyed heroin to Agent O'Donoghue.

Although not included in the charge before it, at

sentencing the district court included two other quantities of

drugs under the rubric of relevant conduct pursuant to the United

States Sentencing Commission's Sentencing Guidelines. First, in

November 1994, Officer Brian Higgins of the Maine State Police

found Young unconscious in Machias, Maine, in an automobile owned

by Johnson, and in possession of approximately 11 ounces of

cocaine. The district court took this cocaine into account (the

"Machias cocaine") in computing Young's sentence in the instant

conviction. Additionally, Johnson testified that Young had sold

him heroin for almost two years previous to Young's January 13,

1995, arrest. The district court also took this heroin into

account (the "Johnson heroin") in computing Young's sentence in

the instant conviction.

At trial, after the district court refused to instruct

the jury on the defense of entrapment, Young waived his right to

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a jury trial, submitted to a verdict of the district court, and

was convicted and sentenced.

II. DISCUSSION
II. DISCUSSION

A. The Requested Entrapment Instruction
A. The Requested Entrapment Instruction

Young challenges the district court's refusal to

instruct the jury on his defense of entrapment. "[A] defendant

is entitled to a jury instruction on entrapment if there is

record evidence which fairly supports the claims of both

government inducement of the crime and defendant's lack of

predisposition to engage in it." United States v. Rodr guez, 858

F.2d 809, 814 (1st Cir. 1988). The record must show "hard

evidence," which if believed by a rational juror, "would suffice

to create a reasonable doubt as to whether government actors

induced the defendant to perform a criminal act that he was not

predisposed to commit." Id. The existence or nonexistence of

the required quantity of evidence in a given case is a matter of

law for the court, see id. at 809, and thus our review is

plenary, reading the record evidence in the light most favorable

to the defense. See United States v. Tejeda, 974 F.2d 210, 217

(1st Cir. 1992); Rodr guez, 858 F.2d at 814. Once a defendant

carries his or her entry-level burden, the government may prove

the absence of entrapment by showing, beyond a reasonable doubt,

"that the defendant was disposed to commit the criminal act prior

to being first approached by government agents." Gifford, 17

F.3d 462, 468 (1st Cir. 1994).

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We conclude that even assuming all of Hendricks' acts

could be considered government conduct,1 the district court did

not err in finding a lack of "hard evidence," which if believed

by a rational juror, would suffice to create a reasonable doubt

as to whether Hendricks committed acts that would meet the legal

definition of entrapment.2 To be entitled to the instruction on

entrapment, a defendant must show hard evidence that, if

believed, would lead a reasonable person to the requisite

conclusion; it is not enough that there be doubt in the absence

of evidence on a given point. See United States v. Pratt, 913

F.2d 982, 988 (1st Cir. 1990); Rodr guez, 858 F.2d at 814. As we

have previously stated,

[i]f an accused suggests that entrapment
belongs in the case, it seems not unfair

1 Young argues that all of Hendricks' acts, dating from their
first meeting, should come under the lens of entrapment's
examination for improper government action that contaminated the
prosecution. Young asserts that Hendricks intended to become a
government agent from the beginning, when he befriended Young,
and thus all of Hendricks' actions constitute the actions of a
government agent. Relying on Sherman v. United States, 356 U.S.

369 (1958), Young contends that even though there is no "private
entrapment" defense, see United States v. Gendron, 18 F.3d 955,

962 (1st Cir. 1994) (collecting cases), because Hendricks may
well have began his association with Young with a view towards
turning government informant, the government "ratified"
Hendricks' acts, including those committed before Hendricks first
contacted O'Donoghue.

Because we find no hard evidence of inducement even those of
Hendricks' acts that pre-date his enrollment with the DEA, we
assume the validity of Young's novel theory of entrapment by
government ratification without ruling on it.

2 We do not consider this definition with respect to O'Donoghue,
because the record, including Young's testimony (described
infra), shows that O'Donoghue had minimal contact with Young

before the controlled buy that led to this appeal.

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to expect him to point to a modicum of
evidence supportive of his suggestion.
The alternative -- that the prosecution
be forced to disprove entrapment in every
case -- seems plainly unacceptable.

Id. at 813-14 (citations omitted). In the entrapment context,

inducement must be such that it implicates concerns of government

"overreaching," see Gendron, 18 F.3d at 962; solicitation alone

does not suffice as inducement, see id. at 961. This court has

previously stated that

[a]n improper "inducement," however, goes
beyond providing an ordinary "opportunity
to commit a crime." An "inducement"
consists of an "opportunity" plus

something else -- typically, excessive
pressure by the government upon the
defendant or the government's taking
advantage of an alternative, non-criminal
type of motive.

See id. (citation omitted) (emphasis in original). Examples of

improper "inducement" include intimidation, threats, dogged

insistence, and "arm-twisting based on need, sympathy,

friendship, or the like." United States v. Gifford, 17 F.3d at

468; see also Gendron, 18 F.3d at 961.

The district court concluded that Young essentially

testified that there was no inducement on the part of Agent

O'Donoghue. Reviewing the record, we agree. In response to

repeated questioning on cross-examination, Young failed to point

to any statement or action of Agent O'Donoghue that Young

considered inducement. In fact, by his own testimony, Young

pinpointed the time of any inducement to his contact with

Hendricks in the hospital. With respect to Hendricks, Young

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attempted to depict a pattern of inducement. Young testified

that Hendricks allegedly induced him to sell narcotics by

befriending him while both were in treatment, by telling "war

stories," by "com[ing] into [his] hospital room," and by saying

that he could arrange for Young to obtain drugs. Young testified

that Hendricks allegedly led him into selling drugs by telling

Young "to trust him," and that "[b]y just being there," Hendricks

"was the answer to everything."

Even viewing the record most favorably to Young, we

find that the district court properly found that Young did not

produce "hard evidence" that Hendricks used coercion,

intimidation or any promise of benefits other than the

opportunity to commit the crime. Young's own trial testimony was

that Hendricks' actions amounted to talking about drugs,

referring to the availability of drugs, and arranging the

purchase with O'Donoghue. There was no testimony or other

evidence, let alone "hard evidence," of coercion or intimidation.

Cf., e.g., United States v. Becerra, 992 F.2d 960, 963 (9th Cir.

1993) (describing government officials who used threats against a

defendant's family); United States v. Groll, 992 F.2d 755, 759

(7th Cir. 1993) (describing government officials who called every

day and "began threatening" the defendant). Unlike in Sherman v.

United States, 356 U.S. 369 (1958), there was no evidence that

Hendricks feigned physical suffering due to withdrawal symptoms.

Id. at 373. While there was testimony that Hendricks showed

Young his track marks, there was no testimony by Young, nor any

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other evidence, of any attempt to attract sympathy in order to

obtain drugs for Hendricks or O'Donoghue. With respect to

coercion or emotional appeals to sympathy, then, we find no hard

evidence in the record regarding the instant offense that would

satisfy the required showing of inducement, that is, "opportunity

plus something else."

Similarly, while there have been cases in which pleas

based upon a defendant's friendship with an informant have

justified a finding of entrapment, see, e.g., Sorrells v. United

States, 287 U.S. 435, 440-41 (1932) (using sentiment of "one

former war buddy . . . for another" to get liquor during

prohibition), there was no such evidence here. There was hard

evidence, in the form of Young's testimony, from which a rational

jury could have inferred a friendship with Hendricks, albeit a

recently established one. There was no testimony from Young, nor

was there any other hard evidence, that Hendricks made any plea

based upon any degree of friendship that the two men had

established during their brief acquaintanceship, which Young

testified began on or about December 23, 1994, to encourage Young

to do anything that he was not predisposed to do. We cannot

find, and Young does not cite authority for, the proposition that

friendship, without a plea predicated upon friendship, suffices

legally as inducement; indeed case law suggests that, as a matter

of law, friendship alone does not constitute sufficient

inducement. See, e.g., United States v. Ford, 918 F.2d 1343,

1348 (8th Cir. 1990) (concluding that, "as a matter of law,"

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evidence that a defendant thought he or she was doing a favor for

a friend by selling that friend illegal drugs does not suffice

for showing inducement to obtain entrapment instruction); United

States v. Jones, 487 F.2d 676, 678 (9th Cir. 1973) ("[f]riendship

is not, by itself, a sufficient inducement to constitute

entrapment as a matter of law"). The sole evidence pertinent to

how Hendricks purportedly managed to "lead" Young to selling

drugs to Agent O'Donoghue is Young's testimony that Hendricks

said "I have a friend that wants heroin and I will set you up."

There is no accompanying allegation of coercion, threat, or plea

based upon friendship or sympathy that would constitute more than

mere opportunity, which alone cannot suffice legally as

inducement. See Gendron, 18 F.3d at 961.3

Furthermore, while Young contends that Hendricks

disrupted his drug treatment program by bringing up the subject

of drugs in conversation, we can find no authority for the

proposition that merely affording the opportunity for illegal

activity can qualify legally as inducement simply because of the

context, were Young to make such an argument. In fact, authority

3 Accordingly, we need not consider the additional required
finding of predisposition. However, we note that Hendricks'
first tape, from December 27, 1994, contains strong evidence of
Young's interest in providing drugs to Hendricks. Without any
request from Hendricks, Young brings up the subject of a car
"going in five minutes" that is going to obtain 21 grams of an
unidentified substance that would be "enough for all of you."
What hard evidence existed regarding predisposition suggests that
not only did Hendricks not offer more than an opportunity, but
also, in fact, that Young may already have been predisposed to
sell or provide drugs to others, and that Young may have
initiated the component of his relationship with Hendricks that
involved the buying and selling of illegal drugs.

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exists for the proposition that context is irrelevant where an

informant's action was "nothing more than a solicitation to act."

United States v. Singh, 54 F.3d 1182, 1189 (4th Cir. 1995)

(finding no inducement where former patient, acting as a

government agent, convinced physician to write her prescription

for pharmaceuticals, forming the factual basis of his conviction

for distributing controlled substances outside the scope of his

medical practice for other than legitimate medical purposes, and

for falsifying prescription information); see United States v.

Mendoza-Salgado, 964 F.2d 993, 1004 (10th Cir. 1992) (finding no

inducement and rejecting defendant's self-portrayal as "gullible

alcoholic," finding dispositive that the record indicated that

"the government informer did no more than advertise [an Agent's]

interest in purchasing cocaine" and setting up the controlled

buy). By contrast, the informant in Sherman, a case on which

Young relies heavily, repeatedly sought drugs from the defendant

in a treatment context, supplementing his recurring requests with

claims of physical discomfort from withdrawal. Sherman, 356 U.S.

at 371 (noting that the defendant there tried to avoid the issue

of illegal drugs "from the first," and "[n]ot until after a

number of repetitions of the request, predicated on [the

informant's] presumed suffering, did petitioner finally

acquiesce").

Ultimately, while Young testified that Hendricks

befriended him and brought up the subject of drugs, he never

testified that Hendricks used this friendship as leverage

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constituting the "opportunity plus something else" legally

required for a finding of inducement, see Gendron, 18 F.3d at

961. The December 27 recording, in fact, shows that Young was in

the process of obtaining drugs before offering them to his friend

Hendricks. In fact, at trial, Young provided the following

summary of how Hendricks "led" him into selling drugs: "[b]y just

being there, he was the answer to everything." Assuming, without

concluding, that Hendricks was a government agent, we might find

it distasteful that a government agent was even present talking

about drugs in a detoxification center. But this circuit has

never held, and we do not now hold, that the context in which

government conduct occurs waives the defendant's burden to show

hard evidence of legally sufficient inducement. Without the

requisite evidence, as here, we conclude that the district court

properly found that Young was not entitled to have a jury

consider his entrapment defense, and therefore we affirm the

district court's decision.

B. The Sentence
B. The Sentence

At sentencing, the district court found the total drug

quantity attributable to Young to be equivalent to 284.41

kilograms of marijuana, resulting in a Base Offense Level of 26.

See U.S.S.G. 2D1.1(c)(7). In making this finding, the District

Court found three distinct quantities of illicit drugs: (1) 17.96

grams of heroin involved in the controlled buy which formed the

predicate for the prosecution (translating to 17.96 kg of

marijuana equivalent); (2) 453 grams of cocaine representing

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drugs found on the defendant upon his arrest in Machias, Maine in

November of 1994 (translating to 90.6 kg of marijuana

equivalent); and (3) 176 grams of heroin representing drugs the

district court found that Young had sold to Johnson over a two-

year period preceding the subject prosecution (translating to 176

kg of marijuana equivalent).

On appeal, Young contends that the district court erred

by including both the Machias cocaine and the Johnson heroin in

calculating his sentence. According to Young, the circumstances

surrounding the Machias cocaine and the Johnson heroin should not

have been factored into "relevant conduct" for the purposes of

his sentence, because sufficient nexus with his charged conduct

did not exist.

To bring uncharged conduct into play, the government

must show a sufficient nexus between the conduct and the offense

of conviction by a preponderance of the evidence. See United

States v. Sklar, 920 F.2d 107, 110 (1st Cir. 1990). Absent a

mistake of law, we review only for clear error the district

court's conclusions that drugs were part of the same conduct or

scheme or plan. See id. at 110-11.

Under the Sentencing Guidelines, "relevant conduct"

includes all acts "that were part of the same course of conduct

or common scheme or plan as the offense of conviction[.]"

U.S.S.G. 1B1.3. For two or more offenses to be considered part

of a common scheme or plan, "they must be substantially connected

to each other by at least one common factor, such as common

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victims, common accomplices, common purpose, or similar modus

operandi." U.S.S.G. 1B1.3, comment. (n.9(A)).

We conclude that the circumstances surrounding the

Machias cocaine and the charged offense4 were part of a common

scheme or plan because they evince at least two common factors:

a common source for the drugs in New York and common transport of

the drugs to Maine. In his appellate brief, Young concedes that

he obtained both the Machias cocaine and the heroin involved in

the charged offense from the same source in New York.

Additionally, as in the charged offense, he apparently brought

the drugs from there to Maine. Furthermore, at trial, agents

testified that a subsequent search of his house turned up used

and unused syringes, several sets of scales covered with white

powder, marijuana, pills and other drug residue. Thus, there was

evidence tending to tie the circumstances surrounding the Machias

cocaine and the offense conduct together as part of a common

scheme whereby Young conveyed drugs from his supplier in New York

to buyers in Maine.5

4 Because we find proper the district court's inclusion of the
Machias cocaine, we do not consider whether the Johnson heroin
was correctly included, since even if the Johnson heroin were
excluded, it would not change Young's base offense level or
sentencing range. "[W]hen correction of a finding would not
change the applicable offense level or affect the sentencing
range, any error therein would necessarily be harmless." United

States v. Bradley, 917 F.2d 601, 603 (1st Cir. 1990).

5 Since we find that the Machias cocaine and the heroin involved
in the charged offense form part of a common scheme or plan,
according to U.S.S.G. 1B1.3, these drug quantities may be
included together under the rubric of relevant conduct. Because
1B1.3 requires a finding of either a "common scheme or plan" or

the "same course of conduct," we do not consider Young's further

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Additionally, Young argues that the offense conduct

involved selling cocaine to Agent O'Donoghue for expected further

distribution in Canada, while assuming that if the Machias

cocaine was to be resold, it would presumably be sold in Maine.

Without concluding that different destinations require a finding

that the incidents cannot be part of a common scheme or plan, we

find this argument unconvincing given that the offense conduct

involved selling drugs in Portland, Maine, and that apparently

Agent O'Donoghue was to handle further distribution. Certainly,

we do not believe that it was clear error for the district court

to find a common scheme on these facts.

Furthermore, while Young testified that the Machias

cocaine was all for his own use, the district court was not

required to believe him. See United States v. Brewster, 1 F.3d

51, 54 (1st Cir. 1993). In reviewing sentencing proceedings, as

elsewhere, we must be mindful that "credibility determinations

lie primarily within the realm of the district court," id. at 55,

and where, as here, "there are two plausible views of the record,

the sentencing court's adoption of one such view cannot be

clearly erroneous," id. (citing United States v. St. Cyr, 977

F.2d 698, 701 (1st Cir. 1992)). The district court's conclusion

was particularly plausible here, where the court heard testimony

contention that because the events surrounding the Machias
cocaine were separated in time from the offense conduct by
Young's self-admission into a detoxification center, these two
incidents cannot be considered part of the same course of conduct
under U.S.S.G. 1B1.3(a)(2), because they cannot be considered
part of a single episode, spree, or ongoing series of offenses.
See U.S.S.G. 1B1.3, comment. (n.9(B)).

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from Maine DEA Supervisor Kenneth MacMaster that a typical dosage

of cocaine for personal use ranges from one-tenth to one-fourth

of a gram, and that a total of 453 grams of cocaine were seized

from the car, along with scales and other paraphernalia found at

Young's home, suggesting further distribution.

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CONCLUSION
CONCLUSION

As a result of the foregoing, the judgment of the

district court is affirmed.
affirmed

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