[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 02, 2002
_______________ THOMAS K. KAHN
CLERK
No. 00-16547
______________
D.C. Docket No. 00-00065-CR-02-RWS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRANCE RYAN,
a.k.a. Owen, etc.,
ROHAN ST. VON EVERING,
Defendants-Appellants.
____________________
Appeals from the United States District Court
for the Northern District of Georgia
___________________
(May 2, 2002)
Before BIRCH and DUBINA, Circuit Judges, and KATZ*, District Judge.
___________________
*Honorable Marvin Katz, U.S. District Judge for the Eastern District of Pennsylvania,
sitting by designation.
PER CURIAM:
On appeal, co-defendants Terrance Ryan (“Ryan”) and Rohan St. Von
Evering (“Evering”) raise numerous issues pertaining to their jury trial and
sentences on various charges. We address these issues seriatim.
I. Terrance Ryan
On August 15, 2000, Terrance Ryan was convicted by a jury of conspiracy
to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C.
§ 846, attempt to possess with the intent to distribute 100 kilograms or more of
marijuana in violation of 21 U.S.C. § 846(b)(1)(B)(vii), and travel in interstate
commerce with intent to promote an unlawful activity in violation of 18 U.S.C.
§§ 1952(a)(3) and 2. All charges arose from Ryan’s efforts to buy marijuana from
a confidential informant and government agents. On December 11, 2000, Ryan
was sentenced to concurrent terms of imprisonment of 70 months on each of the
drug charges and 60 months on the interstate travel charge.
Ryan appeals the district court’s refusal to instruct the jury on his claim of
“sentencing entrapment,” that is, his claim that the government entrapped him into
agreeing to purchase a greater quantity of drugs than he was predisposed to
purchase, and that he should not be held accountable for the larger quantity to
which he was entrapped.
2
This court has previously rejected the notion that a sentencing court could
impose a lesser sentence on the grounds that a defendant was entrapped into
handling a larger quantity of drugs than he was predisposed to handle. See United
States v. Williams, 954 F.2d 668, 672-73 (11th Cir. 1992). However, Ryan urges us
to overrule our holding in Williams in light of Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), which, as applied to this case,
mandates that the quantity of drugs for which Ryan should be held responsible be
found by a jury find beyond a reasonable doubt , rather than by a sentencing court
using the preponderance of the evidence standard.1 In response, the government
argues that Apprendi does not impact the established law regarding entrapment,
and also that under such law Ryan did not produce sufficient evidence to warrant
an entrapment instruction.
1
“Other than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. Ryan was
convicted under, inter alia, 21 U.S.C. § 841(b)(1)(B)(vii), which punishes a drug
offense involving 100 kilograms or more of marijuana with a mandatory minimum
of five years of imprisonment and a maximum of 40 years of imprisonment. 21
U.S.C. § 841(b)(1)(C) punishes a drug offense involving 50 kilograms or more but
less than 100 kilograms of marijuana with a maximum of 20 years of
imprisonment. See also 21 U.S.C. § 812 (marijuana is a Schedule I drug). 21
U.S.C. § 841(b)(1)(D) punishes a drug offense involving less than 50 kilograms of
marijuana with a maximum of five years of imprisonment. 21 U.S.C. §§ 841(b)(4)
and 844 impose a civil penalty for distributing a small amount of marijuana for no
remuneration.
3
The impact of Apprendi on the availability of the sentencing entrapment
defense has not yet been addressed in any published federal appellate opinion. We
do not reach the question here because even if the defense were available,
instructions on the defense were clearly not warranted on the evidence presented in
this case.
Assuming that sentencing entrapment is a recognized defense to be raised
before a jury in this circuit, we consider its viability in this case according to those
rules applicable to a traditional entrapment defense. In this circuit, a successful
entrapment defense consists of two elements: 1) government inducement of the
crime, and 2) lack of predisposition on the part of the defendant. United States v.
Brown, 43 F.3d 618, 623 (11th Cir. 1995). The right to present the defense is
conditional, since
[b]efore an entrapment defense may be presented to the
jury, an evidentiary foundation for a valid entrapment
defense must be present. In essence, this means that the
trial court must determine whether a juror could entertain
a reasonable doubt about whether the defendant was
entrapped. This court, and its predecessor the Fifth
Circuit, have articulated the standard as “some evidence
must be shown, but more than a scintilla must be
presented.”
United States v. Alston, 895 F.2d 1362, 1367 (11th Cir. 1990) (citations omitted).
Furthermore,
4
[t]he determination of whether a sufficient evidentiary
foundation exists in the record which could support a
jury's acceptance of an entrapment defense “is properly a
question for the trial judge, the standard of review being
abuse of discretion.”
Id. at 1368 (citations omitted).
In laying an evidentiary foundation for entrapment, the defendant bears the
initial burden of production as to government inducement; once the defendant
meets this burden, the burden shifts to the government to prove beyond a
reasonable doubt that the defendant was predisposed to commit the crime. See
Brown, 43 F.3d at 623. A defendant may meet his initial burden
by producing any evidence sufficient to raise a jury issue
that the government's conduct created a substantial risk
that the offense would be committed by a person other
than one ready to commit it. This burden is light because
a defendant is generally entitled to put a recognized
defense to the jury where sufficient evidence exists for a
reasonable jury to find in her favor. Nevertheless,
evidence of the government's mere suggestion of a crime
or initiation of contact is not enough. Instead,
government inducement requires an element of
persuasion or mild coercion. As the First Circuit has
recently observed, inducement consists of opportunity
plus something like excessive pressure or manipulation
of a non-criminal motive.
Id. (citations, punctuation omitted). “Persuasion or mild coercion” may be shown
if defendant “demonstrat[es] that he had not favorably received the government
plan, and the government had to ‘push it’ on him, or that several attempts at setting
5
up an illicit deal had failed and on at least one occasion he had directly refused to
participate.” Alston, 895 F.2d at 1368 (citations omitted). The evidence must be
viewed in the light most favorable to the defendant. See United States v. Williams,
725 F.2d 1402, 1404 (11th Cir. 1984).
If the defendant meets his initial burden, that is,
[o]nce there is some evidence that the government
induced the defendant to commit the crime, the question
of entrapment becomes a factual one for the jury to
decide. In that situation the defendant is entitled to have
his defensive theory of the case put before the jury with
appropriate instructions from the trial judge. It is
elementary law that the defendant in a criminal case is
entitled to have presented instructions relating to a theory
of defense for which there is any foundation in the
evidence.
U. S. v. Timberlake, 559 F.2d 1375, 1379 (5th Cir. 1977) (citations, punctuation,
emphasis omitted).
Thus, assuming arguendo that the sentencing entrapment defense is
potentially available at trial in light of Apprendi, we look to whether the district
court in this case abused its discretion in finding that Ryan did not produce
evidence “sufficient to raise a jury issue that the government's conduct created a
substantial risk” that he would commit offenses involving more than 100 kilograms
of marijuana. See Alston, 895 F.2d at 1367 (punctuation, citations omitted).
Ryan argues that at his initial meeting with the government informant, the
6
informant first offered to sell him 1000 pounds of marijuana at $1000 per pound,
but Ryan countered that he was interested in taking only a small quantity and
paying for it later. The confidential informant then cut the price in half and offered
Ryan 500 pounds at $500 per pound. He also made a third offer, which Ryan
accepted, of 500 pounds at $500 per pound as long as Ryan could make an initial
payment of 25% or $62,500, with the remaining 75% to be later provided. When
the exchange was to be completed, Ryan produced only less than $16,000, and yet
the government agents agreed to give him at least 300 pounds for that amount.
In Ryan’s view, these increasingly favorable offers by the government
constituted “not merely inducement or suggestion on the part of the government,
but an element of persuasion or mild coercion.” Id. at 1368 (citation, punctuation
omitted). He argues that the back-and-forth negotiations for smaller amounts of
drugs at lower prices and less up-front cash demonstrates that he “had not
favorably received the government plan, and the government had to ‘push it’ on
him, or that several attempts at setting up an illicit deal had failed and on at least
one occasion he had directly refused to participate.” Id. (citations, punctuation
omitted). Furthermore, Ryan argues that the abundance of marijuana at a low price
and without prepayment in itself constitutes an “element of persuasion or mild
coercion.” Id.
7
However, it is clear that these negotiations did not involve any element of
persuasion or coercion, but rather that the government’s offers merely made the
drugs more accessible or available to Ryan. The fact that a government agent
simply supplies contraband or makes it available is not a proper basis for an
entrapment defense. See United States v. Russell, 411 U.S. 423, 93 S. Ct. 1637, 36
L. Ed. 2d 366 (1973) (reversing finding of entrapment based solely on fact that
government supplied a scarce ingredient essential for drug manufacturing,
overruling United States v. Bueno, 447 F.2d 903 (5th Cir. 1971)); see also Hampton
v. United States, 425 U.S. 484, 96 S. Ct. 1646, 48 L. Ed. 2d 113 (1976) (holding
that governmental provision of contraband is not a violation of due process). But
cf. U.S. S.G. § 2D1.1, cmt. n.15 (2000) (in context of sentencing, downward
departure may be warranted where government as supplier sets artificially low
price for drugs). In other words, while the government’s offers may have
constituted opportunity, what is wholly lacking is evidence of “opportunity plus
something like excessive pressure.” Brown, 43 F.3d at 623 (emphasis added).
Furthermore, even if Ryan’s sentencing entrapment claim were soundly
based in law and fact, the district court was not required to give the requested jury
instruction “if it would not have assisted the jury in resolving the issues presented
to it.” United States v. Chirinos, 112 F.3d 1089, 1101 (11th Cir. 1997). In
8
determining whether the district court abused its discretion in refusing to give the
requested jury instruction, this court considers three factors: “(1) whether the
requested instruction is a substantially correct statement of the law; (2) whether the
jury charge given addressed the requested instruction; and (3) whether the failure
to give the requested instruction seriously impaired the defendant's ability to
present an effective defense.” Id. We find that the requested instruction was a
substantially correct statement of the law of entrapment, and the government does
not argue that the given jury charge addressed the requested instruction; however,
we also find that the failure to give the instruction did not “seriously impair” the
effective presentation of the defense. The district court permitted Ryan to argue
vigorously to the jury that he did not have the intent or ability to purchase large
quantities of marijuana and should not be held accountable for such large
quantities; allowed him to cross-examine witnesses as to whether the offered drug
price was below market; properly submitted the question of drug quantity to the
jury; and instructed the jury that it may find Ryan guilty of any of several lesser-
included offenses involving smaller amounts of marijuana, and provided it with
special interrogatories permitting it to convict Ryan of such offenses. In light of
the opportunities afforded the jury to consider Ryan’s entrapment defense, we find
that the failure to include specific instructions on the issue did not seriously impair
9
presentation of the defense. See id. at 1101 (holding that failure to instruct did not
impair defendant’s ability to argue that he did not intend to steal cocaine but
money, where court permitted defendant to elicit supporting testimony and to make
closing arguments on the issue).2
Thus, even assuming that the sentencing entrapment defense was
hypothetically available, the district court was within its discretion to decide that
Ryan did not present sufficient evidence of governmental inducement to require an
instruction on sentencing entrapment. Furthermore, assuming that the instruction
was warranted, the court’s refusal to instruct did not impair the presentation of the
defense.3
2
Ryan specifically complains that he was deprived of the benefits of burden
shifting under the entrapment defense. However, even this circuit’s pattern jury
instructions on entrapment do not explicitly discuss burden shifting, and we have
repeatedly upheld these instructions against challenges premised on this omission.
See United States v. King, 73 F.3d 1564, 1569-71 (11th Cir. 1996); United States v.
Davis, 799 F.2d 1490, 1493-94 (11th Cir. 1986).
3
Ryan also that he was entrapped into the drug deal in the first instance, that
is, he appears to raise a traditional entrapment argument as well as a sentencing
entrapment argument. The evidence presented in this regard consists of Ryan’s
girlfriend’s testimony that Ryan told her that he had initially contacted the
government informant about a knockoff designer clothing deal, but that the
informant rejected such a deal as not lucrative and then raised the prospect of a
drug deal. Assuming that this was the case, however, it would not be sufficient to
raise a jury issue that government's conduct created a substantial risk that the
offense would be committed by a person other than one ready to commit it. See
Brown, 43 F.3d at 623 (“[E]vidence of the government's mere suggestion of a
10
II. Rohan St. Von Evering
On January 31, 2001, Rohan St. Von Evering was sentenced to 120 months
of imprisonment for conspiracy to possess and attempt to possess with intent to
distribute 100 kilograms or more of marijuana, and simple possession of
marijuana, in violation of 21 U.S.C. §§ 841(b)(1)(B)(vii), 844, and 846. Evering
raises claims of insufficient evidence, improper attribution of drug quantity at
sentencing, and ineffective assistance of counsel.4
1. Sufficiency of the Evidence
Evering appeals the district court’s denial of his motion for acquittal, which
argued that there was insufficient evidence on which to infer that he was a knowing
participant in the conspiracy to distribute marijuana. See, e.g., United States v.
Perez-Tosta, 36 F.3d 1552, 1557 (11th Cir. 1994) (elements of conspiracy are that a
conspiracy existed, that the defendant knew of it, and that defendant, with
knowledge, voluntarily joined it). We review the denial of a defendant's motion
for acquittal de novo, and in considering the sufficiency of the evidence we draw
all reasonable inferences in the government's favor. Id. at 1556. The question is
crime or initiation of contact is not enough.”).
4
Evering also adopts Ryan’s arguments to the extent that those arguments are
deemed relevant to the facts and circumstances of Evering’s case. We see no
reason to address separately the issues raised by Ryan as they apply to Evering.
11
whether “a reasonable trier of fact could find that the evidence establishes guilt
beyond a reasonable doubt.” Id. at 1557.
Evering does not dispute that 1) Evering’s name was on the money order
used to pay the informant for expenses related to the drug deal; 2) Evering drove
his co-defendant to two drug-related meetings; 3) Evering handed the bag
containing the purchase money to the agent; and 4) Evering had substantial, albeit
unrecorded, telephone contact with his co-defendant at times that coincided with
critical points in the deal-making process, including just prior to the issuance of the
money order and during the day that the transaction was to take place. However,
he stresses that there is no direct evidence that he substantively knew of the drug
deal, and argues that his conviction on circumstantial evidence alone was based not
on “reasonable inferences” arising from the evidence, but was impermissibly based
on “mere speculation.” Id. For instance, he notes, an inference of knowing
participation from a defendant’s mere presence and association with conspirators
alone is insufficient to convict. See id. However, it is also the law that any
inference arising from such presence and association is a “material and probative
factor that the jury may consider in reaching its verdict,” United States v. Lyons, 53
F.3d 1198, 1201 (11th Cir. 1995)(citations omitted), and that an inference that the
defendant had a “common purpose and plan” with the other conspirators may arise
12
from “a development and collocation of circumstances.” Id. (citations omitted).
In addition to the evidence already mentioned, the jury also heard testimony
that Evering’s co-defendant gave Evering’s phone number to the informant with
whom he set up the drug deal; that Evering and his co-defendant discussed, in a
tape-recorded conversation, a “delivery” and the other parties’ need to “see the
money”; that Evering remained within sight range of the actual transaction; and
that after Evering showed the money to the agents, one of the agents explicitly
referred to “seven bundles” in Evering’s presence. Based on the totality of the
evidence presented, a jury could have reasonably inferred that Evering was a
knowing participant in the drug conspiracy. See generally id. at 1202 (“Evidence
need not be inconsistent with every reasonable hypothesis except that of guilt in
order to be sufficient,” and jury is “free to choose among reasonable constructions
of the evidence,” regardless of whether the evidence is direct or circumstantial). In
Perez-Tosta, we held that the evidence was insufficient to convict a defendant who
simply delivered keys and registration papers related to a truck used in the drug
deal, and who was found riding in a countersurveillance car near the scene of the
deal. Perez-Tosta, 36 F.3d at 1559 (finding that “a reasonably jury could not
ignore the doubts raised by the possibility that [defendant] was an unwitting dupe
in his sole action that furthered the conspiracy”). In contrast, Evering’s
13
involvement was supported by considerable evidence more directly reflective of
substantive knowledge; in particular, there was evidence that his number was given
to the informant as a contact and that he drove his co-defendant to two separate
drug-related meetings. See Lyons, 53 F.3d at 1203 (rejecting claim that defendant
was merely present at drug deals and not an active participant, since “[defendant]
may have been merely present once; but twice, under all the circumstances of the
case, strains our credulity, as it did the jury’s”). Thus, we cannot disturb the jury’s
finding that Evering was a knowing participant in the offense.
2. Drug Quantity and Minor Role Reduction
Evering also argues that the district court erred in attributing 227.014
kilograms of marijuana to him because there was no evidence to demonstrate that
Evering was a party to any of the negotiations for the purchase of marijuana. We
review a district court’s determination of the quantity of drugs properly attributable
to a defendant for clear error. United Sates v. Zapata, 139 F.3d 1355, 1357 (11th
Cir. 1998). U.S.S.G. § 1B1.3(a)(1)(A) provides that, to determine the base level of
the charged offense, the district court must consider as relevant all acts and
omissions committed, aided and abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant. In the case of a conspiracy, the
district court must consider all acts by other participants that were both reasonably
14
foreseeable and in furtherance of the conspiracy. See U.S.S.G.
§ 1B1.3(a)(1)(B); see also id., cmt. n.2; United States v. Matthews, 168 F.3d 1234,
1247 (11th Cir. 1999). “Even if the court does not make individualized findings
regarding the scope of the defendant’s criminal activity and the contraband
quantities reasonably foreseeable at his level of participation, the sentence can be
upheld if the record supports the district court’s determination of the drug quantity,
including imputing others’ unlawful acts to the defendant.” United States v.
Mertilus, 111 F.3d 870, 873 (11th Cir. 1997).
As previously discussed, the evidence reasonably supported an inference
beyond a reasonable doubt that Evering was a knowing participant in the drug
conspiracy from the time when his co-defendant gave Evering’s phone number to
the informant until his arrest at the scene of the planned exchange. Evering was
convicted of conspiracy to possess more than 100 kilograms of marijuana, which
was appropriate as the object of the conspiracy was 500 pounds or 226.8 kilograms
of marijuana. Evering was also convicted of simple possession of 213.8 grams of
marijuana, independent of 500 pounds of drugs that were the object of the
conspiracy. The total amount of drugs involved was thus 227.014 kilograms of
marijuana, and the district court did not err when it attributed that amount to
Evering at sentencing. See U.S.S.G. § 2D1.1, cmt. n.12 (“[I]n a reverse sting, the
15
agreed-upon quantity of the controlled substance would more accurately reflect the
scale of the offense because the amount actually delivered is controlled by the
government, not by the defendant.”); id. (“If the offense involved both a
substantive drug offense and an attempt or conspiracy . . . the total quantity
involved shall be aggregated to determine the scale of the offense.”).
Evering also argues that the district court erred in failing to award him a
minor-role reduction pursuant to U.S.S.G. § 3B1.2(b). A district court’s finding
regarding a defendant’s role in the offense is reviewed for clear error. United
States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The defendant
has the burden of establishing his role by a preponderance of evidence. Id. at 939.
A defendant warrants a two-level reduction for playing a minor role in an offense if
he is less culpable than most other participants, although his role could not be
described as minimal. U.S.S.G. § 3B1.2, cmt. n.1. The district court’s
determination concerning a role adjustment is premised on a case-by-case factual
inquiry. Id., cmt. background.
The district court conducts a two-pronged analysis of the defendant’s
conduct to determine whether the defendant warrants a minor-role adjustment.
First, the district court must assess whether a defendant’s particular role was minor
in relation to the relevant conduct attributed to him in calculating his base offense
16
level. De Varon, 175 F.3d at 941. “Only if the defendant can establish that she
played a relatively minor role in the conduct for which she has already been held
accountable n not a minor role in any larger criminal conspiracy n” may a
downward adjustment be applied. Id. at 944. The second prong of the analysis, if
reached, requires the district court to assess a defendant’s relative culpability vis-a-
vis that of any other participants. Id.
In this case, the relevant conduct used to calculate Evering’s base offense
level included the agreement by his co-defendant to buy 500 kilograms of
marijuana. We have already considered the evidence supporting a finding beyond
a reasonable doubt that Evering knowingly joined in that agreement from at least
the time when his co-defendant supplied Evering’s phone number to the
government informant until Evering’s arrest at the scene of the drug deal. The
same evidence supports the district court’s finding that Evering failed to establish
by a preponderance of the evidence that his role, as compared to the relevant
conduct, was minor. Thus, the sentencing court did not commit clear error in
failing to award a minor role adjustment under section 3B1.3.
3. Ineffective Assistance of Counsel
Evering claims ineffective assistance of counsel on the grounds that trial
counsel knew of a potentially exculpatory letter written by Evering’s co-defendant,
17
yet failed to investigate the matter and consequently did not move for severance or
bring the evidence to the jury’s attention. Under Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), in order to establish ineffective
assistance claim defendant must show deficiency of counsel’s performance and a
reasonable probability of prejudice.
There is no dispute that Evering did not raise this claim before the district
court. “[A]s a general rule claims of inadequate representation which have not
been raised before the district court cannot be raised on direct appeal.” United
States v. Phillips, 664 F.2d 971, 1040 (5th Cir. Unit B Dec. 1981) (citations
omitted), abrogated on other grounds as recognized in United States v. Acevedo,
141 F.3d 1421, 1425 n.7 (11th Cir. 1998). However, “where the record is
sufficiently developed with respect to such a claim, this Court may determine the
merits of the claim.” Id. (citations omitted). In Phillips, for example, this court
entertained an Strickland claim where the defendant’s complaints about his trial
counsel were raised at the sentencing hearing, counsel responded to the allegations
point by point, and the trial court clearly stated its findings of a conflict of interest
and appointed substitute counsel. Id.
In this case, the record contains some information as to the allegedly
exculpatory letter and Evering’s prior counsel’s actions in regard to that letter. The
18
district court held a conference on the motion to sever, at which the letter and
Evering’s counsel’s failure to move for severance at an earlier time were discussed.
The issue of the letter arose again after trial, when Evering’s trial counsel moved
for a new trial on the grounds that the letter constituted new evidence. The district
court held a hearing on the motion and issued a written order denying the motion.
This record, although partially developed on the issue of the letter, is
insufficiently developed to consider the merits of the ineffective assistance claim.
There is no record as to the critical issue of the scope of defense counsel’s
investigation into the letter. Furthermore, as the district court found when
analyzing whether the letter warranted a new trial under United States v. Hall, 854
F.2d 1269, 1271 (11th Cir. 1988), 1) there was no evidence as to whether the letter
was discovered before trial; 2) there was no evidence as to whether counsel
exercised due diligence in trying to discover the evidence; and 3) there was
insufficient evidence upon which to base a conclusion that the new evidence would
likely produce a different result in a new trial. Just as the district court found the
record to be insufficiently developed as to the discovery of the letter and its
significance to the trial, as well as on counsel’s conduct with regard to the letter,
the record is insufficiently developed to make a finding on these same issues under
Strickland. Thus, the issue cannot be raised in this direct appeal.
19
The judgment of the district court is AFFIRMED.
20