United States Court of Appeals,
Eleventh Circuit.
No. 94-8143.
UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,
v.
Kelsey Pierre MILLER, Defendant-Appellant, Cross-Appellee.
Jan. 2, 1996.
Appeals from the United States District Court for the Northern
District of Georgia. (No. 1:93-00037-CR-5), Robert H. Hall, Judge.
*
Before TJOFLAT, Chief Judge, and DYER and GARTH , Senior Circuit
Judges.
DYER, Senior Circuit Judge:
Appellant Kelsey Miller challenges his conviction for
conspiracy to possess with intent to distribute cocaine base
(crack) in violation of 21 U.S.C. § 846. On appeal, Miller argues
his post-trial motion for judgment of acquittal should have been
granted because the government failed to prove predisposition after
he raised the defense of entrapment. The government cross-appeals
the sentence, contending the district court erred in departing
downward on the theory that Miller was trapped into supplying crack
instead of powder cocaine. We affirm the conviction, but reverse
the sentence.
I. BACKGROUND
At trial the government sought to prove that Miller put
Elbert Frazier, a convicted felon who was acting as a confidential
informant, in contact with two individuals who could supply Frazier
*
Honorable Leonard I. Garth, Senior U.S. Circuit Judge for
the Third Circuit, sitting by designation.
with crack. Miller's defense was that Frazier trapped him into
committing the crime.1
In late December 1992 Frazier had many phone conversations
with Miller, some recorded and some not. The government called
Frazier to testify at trial. He said that sometime between
December 21 and 23, 1992, he called Sonny Ross's pager number to
arrange a drug deal. Miller answered the page, asked what Frazier
needed, and explained that "he was handling everything while Sonny
was out of town." Frazier said he ended that conversation because
he really wanted to speak with Ross. However, because Miller had
asked what Frazier needed and because Frazier had met Miller once
before while attempting to arrange a buy directly with Ross,
Frazier decided he would try to deal with Miller. Frazier called
Miller on December 23 and asked him for a half-kilo of cocaine.
Miller said he did not have it then, but that he could make a phone
call and call Frazier right back. Miller called Frazier back that
day and said he could sell him a half-kilo. Frazier asked for a
price, and Miller responded with $14,000 or $14,500. Frazier asked
if that was the best price available and Miller said it was, adding
that "he wasn't making much off the deal himself." Miller told
Frazier they could do the deal "any time." Frazier suggested that
they wait until after the holidays and Miller agreed.
Frazier called Miller on December 28 to confirm the deal and
ask for a better price. Miller refused to reduce the price and
iterated that he was not making much on the deal.
1
The presence of an entrapment defense necessitates our
review of the facts in the light most favorable to the
government. U.S. v. Brown, 43 F.3d 618, 622 (11th Cir.1995).
Frazier made a series of telephone calls to Miller on December
29. In the first of those calls, shortly before noon, Miller
explained he had paged "Buddy" the night before, but had received
no return call. Frazier said he wanted to do the deal that
afternoon and Miller asked for thirty minutes. Frazier called
again at 12:20 p.m. Miller said he had bad news, that "they" were
"talkin' 'bout 14.5" (meaning $14,500, a high price for a
half-kilo), and that they only had "soft" (meaning powder cocaine).
Miller said he could call another contact, but it would take
longer. Frazier asked Miller if he could "cook" (meaning convert
powder to crack), and Miller said he did not know how. In response
to Frazier's questions, Miller assured Frazier that he had
"checked," and that it was "straight."
In the course of several phone conversations the logistics of
delivering the cocaine at a local mall on the afternoon of December
29 were negotiated. During one conversation Miller said, "You can
have your hand on the pistol or what not you know," and, "You see
something go wrong you know you gotta do what you gotta do." The
delivery fell through, however, because the supplier that Miller
had arranged for Frazier to meet was not comfortable with the
location when he arrived, so the supplier and Miller left the mall
without further explanation to Frazier. Frazier was upset that the
deal fell through, and later that day Miller put Frazier in direct
contact with the supplier, who assured Frazier they would still be
able to work the deal. Nevertheless, the supplier sold the
half-kilo to another party.
Frazier testified he was angry that the buy did not go as
planned, but still wanted to deal with Miller. Later on December
29, Miller called Frazier to advise him that he had been calling
around, but supplies were low. At Frazier's request, Miller called
the original supplier back and arranged another deal, but this time
for a half-kilo of crack. The delivery was successful and Miller
and his alleged co-conspirators, none of whom are parties to this
appeal, were arrested.
After the jury returned a guilty verdict, the defense moved
for a judgment of acquittal on the ground that there was
insufficient evidence to show that Miller was predisposed to engage
in the charged crime. The district court denied the motion. At
sentencing the court was persuaded to reduce the sentence based
upon a partial entrapment theory, which reduced the offense level
to 24, reduced the sentencing range to 61 to 63 months, and
eliminated the minimum mandatory sentence for trafficking crack.
The probation officer had recommended an offense level of 36 based
on 487 grams of crack, enhanced for obstruction of justice, which
would have resulted in a range of 188 to 235 months imprisonment
and a minimum mandatory sentence of 120 months. Miller argued that
the court should treat the 487 grams as powder rather than as crack
because Miller was not predisposed to providing crack until
sufficiently pressured by Frazier, the confidential informant.
Miller was sentenced to 63 months imprisonment and this appeal
followed.
II. STANDARD OF REVIEW
Entrapment is generally a jury question. Therefore,
entrapment as a matter of law is a sufficiency of the evidence
inquiry. When an entrapment defense is rejected by the jury,
our review is limited to deciding whether the evidence was
sufficient for a reasonable jury to conclude that the
defendant was predisposed to take part in the illicit
transaction. Further, a jury's verdict cannot be overturned
if any reasonable construction of the evidence would allow the
jury to find the defendant guilty beyond a reasonable doubt.
Review is de novo, but we must view all facts and make all
inferences in favor of the government.
Brown, 43 F.3d at 622 (citations omitted).
We review the district court's exercise of authority in
departing downward from the applicable guideline range as a
question of law subject to plenary review. United States v.
Costales, 5 F.3d 480, 483 (11th Cir.1993).
III. DISCUSSION
A. Entrapment
Miller asserts that the government failed to prove he was
predisposed to enter into a conspiracy to possess and distribute
crack, and thus the district court erred in denying his motion for
judgment of acquittal. "A successful entrapment defense requires
two elements: (1) government inducement of the crime, and (2) lack
of predisposition on the part of the defendant." Brown, 43 F.3d at
623 (citations omitted). Once the defendant adduces evidence
showing inducement, "the burden shifts to the government to prove
beyond a reasonable doubt that the defendant was predisposed to
commit the crime." Id. (citation omitted). The Brown court held
"that the predisposition inquiry is a purely subjective one which
asks the jury to consider the defendant's readiness and willingness
to engage in the charged crime absent any contact with the
government's officers or agents." Id. at 624. The panel refused
to enumerate a list of factors to address when a defendant's
predisposition is at issue because the inquiry into a defendant's
subjective state of mind prior to government inducement is
necessarily a fact-intensive inquiry. Id. at 625. The court,
however, elucidated several guiding principles gleaned from the
cases, some of which are relevant here:
Predisposition may be demonstrated simply by a defendant's
ready commission of the charged crime. Jacobson v. United
States, 503 U.S. 540, 112 S.Ct. 1535 [118 L.Ed.2d 174] (1992);
[United States v.] Andrews, 765 F.2d [1491] at 1499 [(11th
Cir.1985)]. A predisposition finding is also supported by
evidence that the defendant was given opportunities to back
out of illegal transactions but failed to do so. [ United
States v.] Ventura, 936 F.2d [1228] at 1231, 1232 [(11th
Cir.1991)]. Finally, the fact-intensive nature of the
entrapment defense often makes jury consideration of demeanor
and credibility evidence a pivotal factor. See Ventura, 936
F.2d at 1230.
Id.
We must now examine the evidence of predisposition presented
to the jury in this case. Miller testified at trial that Frazier
induced him to participate in the deal. He denied asking Frazier
what he needed in their initial telephone conversation. Miller
claimed that after at least ten calls over a two-to-three day
period, and a promise from Frazier of $2,000 to arrange the
transaction, he agreed to ask Sonny Ross to find a cocaine
supplier. Miller alleged that Ross called the supplier, who in
turn contacted Miller. In addition to Miller's testimony, the jury
had the benefit of Frazier's testimony, the most relevant portions
of which are summarized above. The jury was free to afford the
greater weight and credibility to Frazier's testimony, including
his statement that Miller initially asked him what he needed and
that Miller told him he was "handling everything" for Ross. The
jury could reasonably find that ten phone calls and a two-day
hesitation did not demonstrate Miller's lack of predisposition,
particularly when, after Miller decided to be involved, he arranged
for a supplier in his first conversation with Sonny Ross after
Frazier had contacted him. See Brown, 43 F.3d at 624 ("Regardless
of the defendant's ability to engage in criminal acts ... the
prompt commission of the crime at the first opportunity is enough
to show predisposition"). Without question, the jury could reject
Miller's testimony as self-serving.
The jury also heard audiotapes of conversations between
Frazier and Miller, from which they could find Miller was
predisposed to be involved in the drug trade. The tapes
demonstrated Miller's fluency in the language of drug dealing
(e.g., "hard" versus "soft" cocaine); his skill as a negotiator
(e.g., refusing to reduce the price of the cocaine despite
Frazier's repeated requests); his direct access to multiple
sources of drugs by "calling around," including by his own
admission reaching a supplier through Sonny Ross; and his ability
to promptly produce a large quantity of cocaine.
In addition, there was evidence that Miller ignored at least
two opportunities to back out of the transaction. The first
occurred on December 29 when Miller and his supplier left the mall
parking lot because they were uncomfortable with the site.
Although Miller might at that time have refused further involvement
with Frazier on the ground that his supplier no longer had the
cocaine, Miller soon afterwards undertook to find a new supplier.
The second opportunity came during a telephone conversation on
December 31 when Frazier threatened to "find another route" in the
context of questioning Miller on whether the second transaction
would go as planned. Rather than allowing Frazier to go elsewhere,
Miller assured him that the deal was "definite."
We hold there was ample evidence, taken as a whole and
considered in the light most favorable to the government, for a
reasonable jury to find Miller predisposed to conspiring to possess
cocaine with an intent to distribute.
B. Sentencing
The government appeals on the grounds that the district court
improperly departed downward by sentencing Miller for conspiring to
possess powder cocaine rather than crack, which was the substance
delivered and charged in the indictment, and that there was no
factual basis to support the theory of partial entrapment. We need
not reach the second issue because we hold that the district court
exceeded its authority in sentencing Miller based on possession of
powder cocaine.
Miller claims he was trapped into supplying crack because
Frazier expressed "a clear preference ... for crack cocaine thereby
warranting a stiffer penalty." For support, Miller points out that
Frazier set the type and amount of drugs and then asked Miller to
cook it if he could only supply powder. Miller contends the
district court did not depart from the guidelines, but acted to
prevent the government, through Frazier, from manipulating the
mandatory minimum statute and the sentencing guidelines to promote
injustice. At sentencing Miller's counsel argued that the jury's
rejection of the entrapment defense means only that they found he
was not trapped into procuring powder since the evidence showed
that powder was the substance Miller and Frazier first discussed.
On appeal he argues the court could impose a lesser sentence
predicated on finding that Miller was trapped into supplying crack
after he had entered into a conspiracy to procure powder cocaine.
We are unpersuaded by these arguments and hold that the district
court unreasonably departed from the sentencing guidelines.
A sentencing court may depart from the recommended range
prescribed by the guidelines only "if the court finds "that there
exists an aggravating or mitigating circumstance of a kind, or to
a degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a
sentence different from that described.' " U.S.S.G. § 5K2.0. Here
the district court made no such findings and a careful review of
the record does not reveal any mitigating circumstances justifying
downward departure. At sentencing, the court alluded to Miller's
youth and lack of criminal history, which have been accounted for
in the guidelines. See U.S.S.G. §§ 5H1.1 and 4A1.3. Miller relies
on United States v. Johnson, 956 F.2d 894 (9th Cir.1992), to
justify the departure by analogy, but the case does not support
Miller's position. Johnson involved the possibility of a downward
departure for duress, id. at 899-901, "under circumstances not
amounting to a complete defense," which is expressly authorized by
U.S.S.G. § 5K2.12. In contrast to Johnson, the guidelines do not
authorize a downward departure for entrapment "under circumstances
not amounting to a complete defense." Cf. U.S.S.G. § 5K2.12.
Furthermore, even § 5K2.12 does not authorize departure below a
statutorily required minimum sentence.
We have held that sentencing entrapment is a defunct
doctrine.2 See United States v. Williams, 954 F.2d 668, 673 (11th
Cir.1992) ("as a matter of law ... we reject the sentence
entrapment theory"); United States v. Markovic, 911 F.2d 613, 616
(11th Cir.1990) ("Entrapment as a matter of law is no longer a
viable defense in this Circuit."); United States v. Struyf, 701
F.2d 875, 877 n. 6 (11th Cir.1983) (the doctrine of entrapment as
a matter of law did not survive ... Hampton v. United States, 425
U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976)). The defense
theory of "partial entrapment" cannot be squared with this
precedent. In reaching this conclusion, we are mindful of
application note 17 to U.S.S.G. § 2D1.1,3 passed after Williams was
decided. Miller interprets note 17 as calling Williams into doubt
because it indicates the government should not be permitted to
structure reverse sting operations so as to maximize the sentence
to be imposed.4 We need not reach this question, however, because
2
Miller believes there exists a distinction between
sentencing entrapment and manipulation but, notably, he does not
explain the nature of the distinction. Miller argues that he is
entitled to a lesser sentence because the government improperly
manipulated the transaction to obtain a mandatory minimum
sentence and to achieve a higher guideline range. We see no
difference in this context between entrapment and manipulation.
3
Application note 17 provides as follows:
If in a reverse sting ... the court finds that the
government agent set a price for the controlled
substance that was substantially below the market value
of the controlled substance, thereby leading to the
defendant's purchase of a significantly greater
quantity of the controlled substance than his available
resources would have allowed him to purchase except for
the artificially low price set by the government agent,
a downward departure may be warranted.
4
In Williams the appellant argued he had been subjected to
sentencing entrapment based on the facts that the government
allowed two codefendants to keep certain profits made from the
application note 17 is inapposite. The government was the buyer in
this case, and there are no facts to support an inference that the
government manipulated the price. Furthermore, note 17 does not
undermine the holdings of Markovic or Struyf, neither of which
involved the sale of narcotics at a below-market price.
Evidence showed that discussions between Frazier and Miller
involved both powder and crack so the defense theory must have been
that Miller lacked the predisposition to deal any drugs—powder or
crack. He could not have successfully argued at trial that he
lacked only the predisposition to sell powder cocaine since the
government had evidence that he arranged for a delivery of crack.
The crux of Miller's argument at sentencing, therefore, was that
the court should resurrect the same entrapment defense that the
jury unequivocally rejected at trial. Downward departure for
dealing powder cocaine thus "implicitly undermined the verdict
returned by the jury" and "flies directly in the face of the jury
finding that [the defendant] was not entrapped." See United States
v. Costales, 5 F.3d at 487. The district court used the post-trial
sentencing process to call the verdict into question, which it was
without power to do. See id. at 488. Accordingly, departure from
the recommended sentencing range was neither reasonable nor
consistent with the guidelines. See id.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the conviction, but
REVERSE and REMAND for resentencing consistent with this opinion.
sale of narcotics and then offered narcotics for sale to
appellant at half the market price. 954 F.2d at 672.