IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________________
No. 94-60730
___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROY C. BRADFIELD and
LEE ANDREW WILLIAMS,
Defendants-Appellants.
________________________________________________
Appeals from the United States District Court
for the Southern District of Mississippi
_________________________________________________
May 14, 1997
Before POLITZ, Chief Judge, and WIENER and STEWART, Circuit Judges.
WIENER, Circuit Judge:
Following the filing and release of this panel’s original
opinion in the subject case,1 a member in active service on this
court asked that the mandate be held and that the panel reconsider
its decision, urging, inter alia, that even if the panel remained
convinced that its judgment is correct, a narrower opinion could
produce the same result. Agreeing now with our colleague, we
withdraw our original opinion and substitute in its place the
writing that follows.
Defendants-Appellants Roy C. Bradfield and Lee Andrews
1
United States v. Bradfield and Williams, 103 F.3d 1207 (5th
Cir. 1997).
Williams appeal their convictions for conspiracy to possess with
intent to distribute cocaine in violation of 21 U.S.C. §§841(a)(1)
and 846. For the reasons set forth below, we affirm Williams'
conviction but reverse Bradfield's and remand his case for a new
trial.
I.
FACTS AND PROCEEDINGS
The events giving rise to Bradfield’s and Williams’
indictments and ultimate convictions arose in the context of a
reverse-sting operation orchestrated largely by the FBI’s
confidential informant, John Lee Chancey, Jr. The sting targeted
Bradfield directly.
Bradfield is a forty-year-old truck driver from Benton,
Mississippi. On a trucking job in 1991, he met two other drivers,
Chancey and Juan Guerero, for the first time. While waiting for
their trucks to be unloaded, Guerero and Chancey began talking
about cocaine and weapons deals. The only evidence in the record
of this conversation is Chancey’s testimony, from which it is not
absolutely clear that Bradfield did not participate in the
conversation but merely listened. Chancey testified initially that
Bradfield “was just laying aside . . . just hearing it.” The only
evidence that any part of the conversation may have been directed
at Bradfield is Chancey’s subsequent testimony that he told
Bradfield to call Guerero if he (Bradfield) wanted to do a deal but
that Chancey would not do a deal until the current trucking job was
completed. Still, there is no evidence that Bradfield participated
2
in any dialogue with either Chancey or Guerero, and none dispute
that Bradfield and Chancey made no agreement that day to do a deal
or that Bradfield left without even bothering to get Chancey’s
telephone number.
Chancey testified further, over a defense objection to
hearsay, that some three months later, in March 1992, Guerero
called and said that he had been contacted by Bradfield about doing
a deal with Chancey. According to Chancey, he immediately notified
personnel at a Texas district attorney’s office, and together they
began to develop a plan to lure Bradfield to Texas to purchase
drugs. The district attorney’s office agreed to compensate Chancey
with 15-25% of whatever money might ultimately be obtained in the
drug deal. When the district attorney realized that his office did
not have the manpower or the jurisdiction to carry out the plan, he
called it off. Disappointed that he would not make any money,
Chancey kept his venture alive by next contacting FBI personnel and
persuading them to take the case on the same contingency fee
arrangement. Chancey admitted at trial that if he had not
persisted with the FBI, the reverse-sting operation would have died
when the district attorney in Texas lost interest.
Chancey placed as many as eighteen telephone calls to
Bradfield, who returned none, before Chancey finally induced
Bradfield to discuss a deal. Indeed, following several telephone
conversations, some of which were taped, Bradfield and Chancey
twice attempted — unsuccessfully — to structure the drug deal in
Mississippi. Finally, several weeks later, Chancey returned to
3
Jackson, Mississippi and, in a taped telephone conversation on June
22, 1992, made a deal to sell Bradfield four kilograms of cocaine
for $50,000. They decided to meet at the Shoney’s restaurant
adjacent to the Shoney’s Inn on East County Line Road where Chancey
was staying.
That same day Williams, who is a mechanic, used auto parts
dealer, and occasional roofing contractor from Yazoo County,
Mississippi, agreed to ride to Jackson with his nephew, Herbert
Watts, Jr., to pick up some furniture for delivery to Williams’
sister-in-law, Joyce Sawyer, in Ridgeland, Mississippi. According
to Watts’ testimony, Williams and Watts rode in Watts’ truck to
East County Line Road and stopped at a convenience store to call
Ms. Sawyer before picking up the furniture. She was not at home,
so they decided to eat at the Shoney’s restaurant next door.
Williams and Watts entered the restaurant with a relative of
Roy Bradfield's, Newton “Shawn” Bradfield (Shawn), whom Williams
had recognized in the parking lot. Once inside, Williams spotted
his old high school classmates, Bradfield and co-defendant Gregory
Robertson, sitting together at a table. Williams, Watts, and Shawn
joined Bradfield and Robertson and ordered something to eat.
Around 1:00 p.m., Chancey entered the restaurant and sat at a
table next to the aforenamed group of five. Shortly after Chancey
sat down, Bradfield pointed to Williams, indicating to Chancey that
Williams was “the man that was going to bring the money,” and then
motioned for Chancey to accompany him (Bradfield) to the men’s
room. Inside the men’s room, Bradfield and Chancey engaged in a
4
lengthy conversation which Chancey was secretly recording. About
fifteen minutes later, Williams entered the men’s room and
Bradfield introduced him by his nickname, Chimp, to Chancey. The
conversation resumed, this time among the three men.
The gist of this recorded conversation was that some of the
drug money was at the restaurant, but that a substantial amount was
elsewhere. Bradfield said that he and Robertson would leave the
restaurant, presumably to retrieve the rest of the money, and
instructed Williams to tell Shawn that they (Williams and Shawn)
would show Chancey the money that Shawn was holding. Bradfield
also instructed Williams to accompany Chancey to his motel room and
wait there with him until Bradfield returned with the rest of the
money. Williams agreed to go with Chancey, saying that he would
take along a “notebook or something.”
Instead of going with Chancey, though, Williams went back to
the table and got Watts. The two of them then left the restaurant
together, leaving Robertson and Shawn at the table.
David Langlois, an FBI electronics technician, witnessed the
next series of events, to which he testified at trial. Langlois
was driving home from work and stopped at a Texaco station at Exit
108 on I-55. While stopped, he saw a dark Buick Regal, which
matched a vehicle description that he had heard earlier on the FBI
radio, turn into the service station across the street from the
Texaco and stop alongside a silver Ford Ranger pickup belonging to
Watts. One of the occupants of the Buick (Langlois testified that
there were at least two) entered the service station’s convenience
5
store, and the silver pickup was driven around to the rear of the
store. The individual from the Buick left the store and walked
around to the silver pickup at the rear of the store. Two
individuals in the Buick then drove it away. The driver of the
silver pickup moved it to the east side of the station, parked it,
got out, and got into a dark colored, full-sized pickup truck
belonging to Robertson, who had just arrived at the service
station. The individual from the silver pickup and Robertson then
left the station in Robertson's truck.
Langlois never saw gasoline purchased for any of the vehicles
that had stopped at the station. The FBI agents who observed the
scene (Langlois and his relief) reported that the individuals in
the various vehicles appeared to be engaged in “counter-
surveillance” activity, i.e., looking for indications of any
suspicious circumstances or the presence of law enforcement
officers.
Not surprisingly, Williams’ brief recounts a significantly
different version of these events. According to Williams' version,
he and Watts left the restaurant and called Ms. Sawyer again, but
she was still not home, so they drove to Williams’ brother’s house
in Jackson. Williams read the paper and dozed for about an hour
while Watts continued the efforts to contact Ms. Sawyer. Never
able to reach her, the two headed back to Yazoo County, as Watts
had to report to work in Canton, Mississippi at 3:30 p.m. Watts
stopped at a Texaco station at Exit 108 on I-55 and filled his
truck with gasoline. Leaving the station, they saw Robertson
6
putting diesel fuel into his truck. Watts stopped beside
Robertson's truck, and Williams asked Robertson if he wanted to see
a roof that Williams had put on a “mansion” in Madison County.
Watts parked his truck; Watts and Williams got into Robertson’s
truck; and the three went to see the roof (despite Watts’ purported
appointment in Canton). Later, when those three returned to the
Texaco station in Robertson's truck, three cars of FBI and DEA
agents pulled in behind them, detained them for approximately 25-30
minutes, photographed them, searched their persons as well as
Robertson’s and Watts’ trucks, but eventually released all three
without arresting them.
It is noteworthy that (1) Williams maintains that these events
took place at the Texaco station at Exit 108 on I-55, but Langlois
testified that they occurred at the service station across the
street from the Texaco station, and (2) Langlois never saw fuel
purchased for any of the vehicles.
Sometime after the vehicles left the service station,
Bradfield went to Chancey’s room at the Shoney’s Inn where, during
a video taped meeting, Bradfield chided Chancey for not coming to
Exit 108 so that the transaction could proceed more smoothly.
Chancey and Bradfield went downstairs and got into the Buick.
Inside the car, co-defendant Michael Roberts showed Chancey one
sack of money, and Bradfield pointed to another sack of money on
the floorboard. Chancey returned to his room alone, supposedly to
get the drugs, whereupon Bradfield and Roberts were arrested in the
Buick in possession of a 9mm machine pistol and $50,000.
7
Back at Exit 108, another FBI agent had observed Robertson
drive into the same service station. Williams was in the truck
with Robertson, who stopped beside Watts’ silver pickup. Watts got
out of his truck and into Robertson’s. As Robertson drove off with
Williams and Watts, two FBI agents stopped Robertson’s truck,
identified the three individuals, photographed them, and —
according to Williams' brief — searched their persons and the two
trucks but released them without arrest. No money or drugs were
found on any of their persons or in their vehicles.
Bradfield was indicted by a federal grand jury, charged with
conspiracy to possess with intent to distribute cocaine.2 He did
not testify at trial but relied primarily on an entrapment defense.
The district court nevertheless refused to instruct the jury on
entrapment. Bradfield was convicted and sentenced to 135 months,
to be followed by a four year period of supervised release, and was
ordered to pay a $1,000 fine.
Bradfield timely appealed, asserting that the district court
erred in: (1) failing to instruct the jury on entrapment, (2)
failing to instruct the jury on evaluating the credibility of a
compensated witness, and (3) denying a downward adjustment to
Bradfield’s sentence for acceptance of responsibility.
Williams was indicted by a federal grand jury, charged with
conspiracy to possess with intent to distribute cocaine. Williams
did not testify at trial but relied primarily on a defense of
2
Roberts and Robertson were also indicted and tried with
Bradfield and Williams.
8
innocent presence and association. He was convicted and sentenced
to 97 months, to be followed by a four year period of supervised
probation, and was ordered to pay a fine of $1,000. Williams filed
motions for a judgment of acquittal and a new trial, both of which
were denied by the district court.
Williams timely appealed, asserting that (1) the evidence was
insufficient to support his conviction, (2) the district court
erroneously denied his motion for a new trial, (3) the district
court denied his right to a speedy trial, (4) the district court’s
rulings were inconsistent, and (5) his counsel was ineffective.
II.
ANALYSIS
A. BRADFIELD
1. Jury instruction on entrapment
A defendant is entitled to an entrapment instruction when
there is sufficient evidence from which a reasonable jury could
find entrapment.3 It follows that when a defendant's properly
requested entrapment instruction is undergirded by evidence
sufficient to support a reasonable jury's finding of entrapment,
the district court errs reversibly by not adequately charging the
3
Matthews v. United States, 485 U.S. 58, 62, 108 S. Ct. 883,
886 (1988); United States v. Collins, 972 F.2d 1385, 1413 (5th Cir.
1992), cert. denied, 507 U.S. 1017, 113 S. Ct. 1812 (1993). See
also United States v. Branch, 91 F.3d 699, 711-12 (5th Cir.
1996)(“As a general proposition a defendant is entitled to an
instruction as to any recognized defense for which there exists
evidence sufficient for a reasonable jury to find in his favor . .
. .”)(citing Matthews, 485 U.S. at 63, 108 S. Ct. at 887).
9
jury on the theory of entrapment.4 We review de novo the district
court’s refusal to offer a “theory of defense” requested by the
defendant.5
The critical determination in an entrapment defense is whether
criminal intent originated with the defendant or with the
government agents.6 Thus the threshold question is whether the
defendant was predisposed to commit the offense.7 To assert an
entrapment defense successfully, the defendant must first make out
a prima facie case that the government’s conduct created a
substantial risk that an offense would be committed by a person
other than one ready to commit it.8 This requires the defendant to
show both (1) his lack of predisposition to commit the offense and
4
See United States v. Schmick, 904 F.2d 936, 943 (5th Cir.
1990), cert. denied sub nom., 498 U.S. 1067, 111 S. Ct. 782
(1991)(“It has long been well established in this Circuit that it
is reversible error to refuse a charge on a defense theory for
which there is an evidentiary foundation and which, if believed by
the jury, would be legally sufficient to render the accused
innocent.”)(quoting United States v. Lewis, 592 F.2d 1282, 1285
(5th Cir. 1979)); United States v. Johnson, 872 F.2d 612, 622 (5th
Cir. 1989)(“When a defendant properly requests an instruction on a
theory of defense that is supported by some evidence, it is
reversible error not to adequately present the theory.”).
5
United States v. Gentry, 839 F.2d 1065, 1071 (5th Cir. 1988),
cert. denied sub nom., 500 U.S. 925, 111 S. Ct. 2034 (1991).
6
United States v. Pruneda-Gonzalez, 953 F.2d 190, 197 (5th
Cir.), cert. denied, 504 U.S. 978, 112 S. Ct. 2952 (1992)(citing
United States v. Nations, 764 F.2d 1073, 1079 (5th Cir. 1985));
United States v. Toro, 840 F.2d 1221, 1230 (5th Cir. 1988).
7
United States v. Ivey, 949 F.2d 759, 768 (5th Cir. 1991),
cert. denied sub nom., 506 U.S. 819, 113 S. Ct. 64 (1992).
8
Johnson, 872 F.2d at 620; United States v. Hudson, 982 F.2d
160, 162 (5th Cir.), cert. denied, 510 U.S. 831, 114 S. Ct. 100
(1993).
10
(2) some governmental involvement and inducement more substantial
than simply providing an opportunity or facilities to commit the
offense.9
Before our decision in United States v. Nations,10 it was
unclear how much evidence of non-predisposition and inducement the
defendant had to show before he becomes entitled to an entrapment
instruction.11 One line of decisions directed the trial judge to
give an entrapment instruction if the defendant presented any
evidence supporting his assertions, regardless of how flimsy or
insubstantial his evidence might be.12 An alternative view required
the defendant to present substantial evidence, which was defined as
more than just a smattering or a scintilla, before he could obtain
an entrapment instruction.13
In Nations, we resolved these conflicting authorities, stating
that the defendant must show evidence that provides, at the least,
a basis for a reasonable doubt on the ultimate issue of whether
criminal intent originated with the government. In short, the
record must contain sufficient evidence of both inducement and lack
9
Pruneda-Gonzalez, 953 F.2d at 197; United States v. Andrew,
666 F.2d 915, 922 (5th Cir. 1982); United States v. Leon, 679 F.2d
534, 538 (5th Cir. 1982); United States v. Fischel, 686 F.2d 1082,
1085 (5th Cir. 1982).
10
764 F.2d 1073 (5th Cir. 1985).
11
Nations, 764 F.2d at 1080; Fischel, 686 F.2d at 1086 n.2.
12
See Perez v. United States, 297 F.2d 12 (5th Cir. 1961).
13
See Pierce v. United States, 414 F.2d 163 (5th Cir.), cert.
denied, 396 U.S. 960, 90 S. Ct. 435 (1969).
11
of predisposition to raise an entrapment issue; the entrapment
issue need not be presented to the jury if the evidence does not
raise the issue to that degree.14
The Supreme Court’s holding in Matthews — that a defendant is
entitled to an entrapment instruction when there is sufficient
evidence from which a reasonable jury could find entrapment —
comports with our pronouncement in Nations. Moreover, in the
recent decision of United States v. Branch,15 we rejected the
scintilla of evidence standard, recognized that Matthews resolved
the issue of the amount of evidence required, and reiterated the
standard — that evidence in support of a defensive theory must be
sufficient for a reasonable jury to rule in favor of the defendant
on that theory.16
Predisposition focuses on whether the defendant was an “unwary
innocent” or, instead, an “unwary criminal” who readily availed
himself of the opportunity to perpetrate the offense.17
Specifically, the question is whether the defendant intended, was
predisposed, or was willing to commit the offense before first
being approached by government agents.18 Government inducement
14
Nations, 764 F.2d at 1080.
15
91 F.3d 699, 712-13 (5th Cir. 1996).
16
See also United States v. Stowell, 953 F.2d 188, 189 (5th
Cir.), cert. denied, 503 U.S. 908, 112 S. Ct. 1269 (1992).
17
Matthews, 485 U.S. at 63, 108 S. Ct. at 886 (citations
omitted).
18
Johnson, 872 F.2d at 620-21 (citing United States v. Yater,
756 F.2d 1058 (5th Cir.), cert. denied, 474 U.S. 901, 106 S. Ct.
225 (1985)).
12
consists of the creative activity of law enforcement officials in
spurring an individual to crime.19 It need not overpower the
defendant’s will. Neither does the entrapment defense require
proof of threats or coercion.20
Evidence that government agents merely afforded the defendant
an opportunity or the facilities for the commission of the crime is
insufficient to warrant the entrapment instruction.21 If, however,
the defendant makes a prima facie showing of both elements — lack
of predisposition and true inducement by the government — he is
entitled to a jury instruction on the issue of entrapment.22 At
this juncture the burden shifts to the government to prove beyond
a reasonable doubt that the defendant was disposed to commit the
offense prior to first being approached by government agents.23
Bradfield insists that the strong preponderance of the
evidence adduced at trial demonstrates beyond serious question that
the government, through Chancey’s overly persistent efforts,
induced Bradfield to commit an offense that he was not predisposed
to commit, i.e., that the sheer number of contacts initiated by
Chancey without response or encouragement from Bradfield before
19
Fischel, 686 F.2d at 1085.
20
Id.
21
Matthews v. United States, 485 U.S. 58, 66, 108 S. Ct. 883,
888 (1988).
22
United States v. Hudson, 982 F.2d 160, 162 (5th Cir.), cert.
denied, 510 U.S. 831, 114 S. Ct. 100 (1993); Fischel, 686 F.2d at
1085; Leon, 679 F.2d at 538; Andrew, 666 F.2d at 922-23.
23
Hudson, 982 F.2d at 162.
13
Bradfield finally succumbed to Chancey's ceaseless siren song
demonstrates both absence of predisposition and substantial
governmental coaxing. Thus, he argues, the district court erred in
refusing to instruct the jury on entrapment. Bradfield emphasizes
the following: (1) He met Chancey purely by coincidence on a
trucking job and passively listened in on a conversation between
Chancey and Guerero about guns and drugs; (2) Bradfield and Chancey
did not plan a drug deal on the day that they met, and Bradfield
left without attempting to get Chancey’s phone number; (3) Chancey
testified that the reverse-sting was his idea from the beginning
and that only his initiative and persistence with the FBI kept the
plan alive; (4) Chancey had a substantial contingency fee
arrangement with the FBI, and he owed approximately $1,500 in child
support; (5) Chancey admitted at trial that it was he who called
Bradfield and told him to contact Guerero if he wanted to do a
deal, not vice versa (and even then admitted subsequently that he
had not talked to Bradfield but only to Bradfield’s wife); and (6)
Chancey bombarded Bradfield into submission with approximately
eighteen calls during April 1992, in an unrelenting campaign to
entice Bradfield to do a drug deal, before he finally succumbed and
started to negotiate.
Predictably, the government counters that the evidence adduced
at trial showed Bradfield’s predisposition to commit the offense,
thereby obviating the necessity for an entrapment instruction.
First, the conversation between Bradfield, Chancey, and Guerero
during the trucking job regarding the trading of guns for cocaine
14
demonstrated that Bradfield was a willing participant even before
Chancey became a government informant. And it was Chancey who told
Bradfield that he (Chancey) would not do a drug deal until the
trucking job was completed.24 Second, Chancey testified that
Guerero had called him and said that Bradfield had contacted
Guerero about doing a deal with Chancey. Third, the numerous
recorded phone calls between Bradfield and Chancey revealed
Bradfield’s willingness to commit the offense. Finally, in a
recorded face-to-face conversation, Bradfield confided in Chancey
that he (Bradfield) was going to tell his friends who were
supplying the drug money that their price was $15,000 per kilo when
in actuality the price was $12,000 per kilo.
The government relies most heavily on Chancey’s improperly
admitted double hearsay testimony. Chancey testified that Guerero
called him to say that Bradfield had contacted Guerero about doing
a deal with Chancey. When Bradfield’s counsel objected to the
testimony, the district judge overruled her objection. On appeal,
Bradfield again challenged the admissibility of the testimony. It
is well established in this circuit that hearsay may not be
introduced as evidence of predisposition;25 therefore, Chancey’s
24
As noted earlier, it is less than pellucid from Chancey’s
testimony whether Bradfield actually participated in this
conversation or merely listened in.
25
United States v. Webster, 649 F.2d 346, 347 (5th Cir.
1981)(en banc). See also United States v. Kang, 934 F.2d 621, 626
(5th Cir. 1991). In United States v. Nixon, 777 F.2d 958, 964 (5th
Cir. 1985), we clarified the holding in Webster: If an
extrajudicial statement is otherwise admissible under the usual
hearsay rules either as an exception or as non-hearsay, it may be
admitted as evidence of predisposition. In the instant case,
15
testimony on this point cannot be considered. The district court
abused its discretion in admitting this testimony, and we deem it
excluded.
The government’s protestations to the contrary
notwithstanding, we conclude that Bradfield made a prima facie
showing of non-predisposition and inducement, with sufficient
evidence, under Matthews, upon which a reasonable jury could base
a finding that Bradfield was entrapped. First, there is sufficient
evidence that Bradfield was not disposed to commit the offense.26
Once the hearsay testimony is disregarded, there is no question but
that Bradfield made a prima facie showing of lack of
predisposition. The record is devoid of evidence that Bradfield
had ever shown an interest or willingness to participate in a drug
deal before he met Chancey. And he continued to exhibit an absence
of intent for quite a while, despite Chancey's persistent
overtures. There is no evidence at all of even a passing interest
by Bradfield prior to the lengthy period of Chancey’s courtship on
behalf of the government.
Chancey’s testimony was neither an exception to the hearsay rule
nor non-hearsay; therefore, it is inadmissible to prove Bradfield’s
predisposition. See also United States v. Miller, 799 F.2d 985,
991 (5th Cir. 1986).
26
Bradfield’s failure to testify is not fatal to his entrapment
defense. In United States v. Henry, 749 F.2d 203 (5th Cir. 1984),
rejected on other grounds by, United States v. Jones, 839 F.2d 1041
(5th Cir.), cert. denied, 486 U.S. 1024, 108 S. Ct. 1999 (1988), we
stated that “[t]he defendant is not required to testify or to
concede guilt in order to pursue the entrapment theory.” Id. at
210. Thus Bradfield may rely on other evidence in the record to
demonstrate his lack of predisposition. For example, Bradfield’s
employer of eight to ten years testified that Bradfield was a hard-
working husband and father.
16
Second, the record contains a plethora of evidence of
government inducement.27 The reverse-sting operation was Chancey’s
idea, and he actively solicited the FBI’s involvement in the plan.
Well before Bradfield indicated any interest at all in a drug deal,
Chancey made innumerable telephone calls to Bradfield to entice him
to do a drug deal. It was only through his own self-interested,
persistent, and relentless efforts that Chancey was finally able to
persuade Bradfield to participate in the drug deal. We have
recognized that “the time involved is less important than the
degree of pressure applied.”28 Furthermore, Chancey was driven, to
the point of obsession, by the prospect of substantial monetary
reward from his contingency fee agreement and was clearly motivated
by his pressing financial obligations.
As the evidence was more than sufficient to establish a prima
27
As neither side introduced into evidence either the tapes or
transcripts of the numerous recorded “courtship” calls that Chancey
admittedly made to Bradfield before he finally decided to
participate in the deal, we must infer that the content of those
calls could neither have helped nor harmed either the government’s
case or Bradfield’s. As it is obvious from the rest of the record
evidence, however, that Chancey repeatedly tried to tempt Bradfield
before he finally accepted Chancey’s invitation to deal, the only
appropriate inference is that Bradfield rejected (or at least never
responded affirmatively to) the myriad entreaties from Chancey
which preceded Bradfield’s eventual acceptance. It follows that
there is sufficient evidence and inferences of government
inducement to mandate the entrapment instruction. This same
evidence distinguishes the instant case from United States v.
Fischel, 686 F.2d 1082, 1086 (5th Cir. 1982), in which we found no
error in the district court’s refusal to instruct the jury on
entrapment when the defendant had made but a single hesitation of
acquiescence (“I can’t get involved in this.”) before he agreed to
and did participate in the drug transaction.
28
United States v. Sandoval, 20 F.3d 134, 138 n.13 (5th Cir.
1994).
17
facie showing of both Bradfield’s lack of predisposition before
first governmental contact and the government’s protracted
inducement efforts, we find unavoidable the conclusion that the
district court’s refusal to instruct the jury on entrapment
constituted reversible error. We emphasize that we have not
concluded that Bradfield was entrapped by the government —— only
that he was entitled to the entrapment instruction. As we are also
convinced that but for this error there is a substantial likelihood
that the jury verdict might have been favorable to Bradfield, we do
not engage in testing for harmlessness. To do so under these
circumstances would be a hollow act.
2. Bradfield’s Other Assignments of Error
Bradfield claims that the district court committed two
additional errors. For the first time on appeal, he contends that
the district court erred when it failed to instruct the jury
specifically on evaluating the credibility of a government
informant witness who is compensated pursuant to a contingency fee
agreement. As we are reversing his conviction based on the court’s
refusal to give an entrapment instruction to the jury, we need not
and therefore do not address Bradfield’s assignment of error on
this point.29 Likewise, as we are vacating Bradfield’s sentence,
29
This issue is well developed in the jurisprudence of this
court by our en banc opinion in United States v. Cervantes-Pacheco,
826 F.2d 310 (5th Cir. 1987)(en banc), cert. denied sub nom., 484
U.S. 1026, 108 S. Ct. 749 (1988), and its progeny, e.g., United
States v. Rizk, 833 F.2d 523 (5th Cir. 1987), cert. denied, 488
U.S. 832, 109 S. Ct. 90 (1988); United States v. Kaufman, 858 F.2d
994 (5th Cir. 1988), cert. denied sub nom., 493 U.S. 895, 110 S.
Ct. 245 (1989); United States v. Goff, 847 F.2d 149 (5th Cir.),
cert. denied sub nom., 488 U.S. 932, 109 S. Ct. 324 (1988); United
18
we need not and therefore do not address his claim of entitlement
to a downward adjustment for acceptance of responsibility under
United States Sentencing Guideline §3E1.1. He remains free,
however, to re-urge his acceptance of responsibility if he should
be convicted in the future —— whether by guilty plea or by the jury
—— on the charges he faced here, or any of them.
B. WILLIAMS
1. Sufficiency of the evidence; Motion for new trial
In reviewing challenges to the sufficiency of the evidence, we
consider the evidence in the light most favorable to the verdict
and decide whether a rational jury could have found that the
government proved all of the elements of the offense beyond a
reasonable doubt.30 We resolve all inferences and credibility
determinations in favor of the jury’s verdict.31
To sustain a conviction for conspiracy to possess with the
intent to distribute cocaine, the government must prove beyond a
reasonable doubt that (1) a conspiracy existed, (2) the defendant
knew of the conspiracy, and (3) the defendant voluntarily
States v. Pruneda-Gonzales, 953 F.2d 190 (5th Cir.), cert. denied,
504 U.S. 978, 112 S. Ct. 2952 (1992); and United States v. Bermea,
30 F.3d 1539 (5th Cir. 1994), cert. denied sub nom., __ U.S. __,
115 S. Ct. 1113 (1995).
30
United States v. Maltos, 985 F.2d 743, 746 (5th Cir.
1992)(citing Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct.
457, 469 (1942)); United States v. Castro, 15 F.3d 417, 419 (5th
Cir.), cert. denied sub nom., 513 U.S. 841, 115 S. Ct. 127 (1994).
31
Castro, 15 F.3d at 419.
19
participated in the conspiracy.32 The government need not prove the
elements by direct evidence alone; their existence may be inferred
from the “development and collocation of circumstances.”33
That one’s mere presence at the crime scene or close
association with the conspirators, standing alone, will not support
an inference of participation in the conspiracy is long and well
established.34 We will not lightly infer a defendant’s knowledge
of and participation in a conspiracy,35 and the government may not
prove a conspiracy merely by presenting evidence that places the
defendant in “a climate of activity that reeks of something foul.”36
Williams claims that the evidence is insufficient to support
his conviction, insisting that it does nothing more than establish
his presence at the crime scene and his association with others who
were participating in the illegal activity.37 Specifically,
Williams maintains that the government’s evidence shows only that
32
Maltos, 985 F.2d at 746; United States v. Sacerio, 952 F.2d
860, 863 (5th Cir. 1992).
33
Maltos, 985 F.2d at 746 (quoting United States v. Vergara,
687 F.2d 57, 61 (5th Cir. 1982)).
34
Maltos, 985 F.2d at 746; United States v. DeSimone, 660 F.2d
532, 537 (5th Cir. 1981), cert. denied sub nom., 455 U.S. 1027, 102
S. Ct. 1732 (1982); Sacerio, 952 F.2d at 863; United States v.
Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir. 1988); United States
v. Jackson, 700 F.2d 181, 185-86 (5th Cir.), cert. denied sub nom.,
464 U.S. 842, 104 S. Ct. 139 (1983).
35
Maltos, 985 F.2d at 747 (citing Jackson, 700 F.2d at 185).
36
Maltos, 985 F.2d at 747 (citing United States v. Galvan, 693
F.2d 417, 419 (5th Cir. 1982)).
37
Williams does not dispute that a conspiracy existed — only
that the evidence was insufficient to show beyond a reasonable
doubt that he (1) knew of and (2) participated in the conspiracy.
20
he (1) was seen at the Shoney’s restaurant with Bradfield,
Robertson, Watts, and Shawn, (2) participated in a portion of the
recorded conversation in the men’s room with Bradfield and Chancey,
and (3) together with Watts and Robertson, was detained at the
service station, searched, and released without arrest.
Our review of the record leads us to conclude that the
evidence adduced at trial and all reasonable inferences therefrom
are sufficient, when viewed in the light most favorable to the
verdict, to show beyond a reasonable doubt that Williams knew of
and participated in the conspiracy. First, Chancey testified that,
before going into the men’s room, Bradfield pointed to Williams,
indicating that he was the man who would bring the money. Second,
Williams did not merely listen but participated at length in the
recorded conversation in the men’s room during which he, Chancey,
and Bradfield discussed the exchange of the money for the cocaine.
On this point, we have previously recognized that the knowledge and
participation required for a conspiracy conviction may be inferred
from evidence that the defendant was present during or participated
in one or more pertinent conversations with others who were parties
to a conspiracy.38 Both the temporal and substantive extent of
Williams’ participation in the men’s room conversation indicates
38
See Jackson, 700 F.2d at 185 (“The government has offered no
evidence indicating that [the defendant] was present during
conversations in which the conspiracy was discussed.”)(footnote
omitted); Espinoza-Seanez, 862 F.2d at 538 (“[Defendant] was shown
to have been with the conspirators in a car which they drove while
making arrangements furthering their drug trafficking, but he was
never shown to have heard any of the conversations or participated
in any of them.”)(referring to United States v. Gardea-Carrasco,
830 F.2d 41 (5th Cir. 1987)).
21
that his involvement was more substantial than mere presence or
association. Finally, in the men’s room conversation, Williams
agreed to go to the motel with Chancey and wait for Bradfield to
return with the rest of the money.
Viewed in the light most favorable to the jury’s verdict, the
evidence is sufficient to sustain Williams’ conviction. It follows
that the district court did not abuse its discretion in denying
Williams’ new trial motion grounded on an insufficiency of the
evidence.39
2. Speedy trial
Williams maintains that the district court denied his right to
a speedy trial. Whether a district court has complied with the
Speedy Trial Act is a matter of law subject to our de novo review.40
The Act requires that a defendant be tried within seventy non-
excludable days of indictment; otherwise, the indictment shall be
dismissed on motion of the defendant.41 Nevertheless, the
defendant’s failure to move for dismissal prior to trial or entry
of a plea of guilty or nolo contendre constitutes a waiver of the
right to dismissal.42 When Williams failed to raise the alleged
39
United States v. Webster, 960 F.2d 1301, 1305 (5th Cir.),
cert. denied sub nom., 506 U.S. 927, 113 S. Ct. 355
(1992)(reviewing district court’s denial of a motion for a new
trial for clear abuse of discretion).
40
United States v. Jackson, 30 F.3d 572, 575 n.2 (5th Cir.
1994)(citing United States v. Taylor, 487 U.S. 326, 108 S. Ct. 2413
(1988)).
41
18 U.S.C. § 3161(c)(1) (1994).
42
18 U.S.C. § 3162(a)(2) (1994).
22
error prior to trial, he waived his right to dismissal under the
Speedy Trial Act.
3. Inconsistent rulings by the district court
Williams posits that co-defendants to a conspiracy indictment
must be treated alike;43 consequently, he insists, the district
court erred in denying his motion for a new trial after that court
granted such a motion by Robertson. But Williams is wrong in his
basic premise: Our precedent does not require identical treatment
of co-defendants to a conspiracy indictment. It follows that
Williams’ claim is without merit.
4. Ineffective assistance of counsel
Finally, Williams contends that his counsel was ineffective in
(1) waiving Williams’ speedy trial rights without his consent, (2)
subjecting Williams to public ridicule, scorn, and suspicion in his
hometown as a result of his delayed detention, (3) failing to
object timely to testimony implicating Williams in prior narcotics
deals, and (4) conceding Williams’ guilt in closing argument.
Generally we shall not address a claim of ineffective assistance of
counsel on direct appeal unless it has been raised before the
district court. By way of exception, though, we shall review an
ineffective assistance claim that was not previously raised to the
43
Williams’ argument misinterprets United States v. Sheikh, 654
F.2d 1057 (5th Cir. 1981), cert. denied, 455 U.S. 991, 102 S. Ct.
1617 (1982), and United States v. Zuniga-Salinas, 945 F.2d 1302
(5th Cir. 1991), both of which have been subsequently overruled and
reversed, respectively, by United States v. Zuniga-Salinas, 952
F.2d 876 (5th Cir. 1992)(en banc)(holding that an inconsistent
verdict is not a bar to conviction where all other co-conspirators
are acquitted).
23
district court if the record is sufficiently developed with respect
to the merits of such a claim.44 As Williams’ claim was neither
raised in the district court nor sufficiently developed in the
record, we decline to address this alleged error on direct appeal.
III.
CONCLUSION
As the district court erred reversibly in refusing to instruct
the jury on entrapment, we reverse Bradfield’s conviction, vacate
his sentence, and remand his case for a new trial. As the district
court committed no reversible error regarding Williams, however,
his conviction is affirmed.
AFFIRMED as to Williams; REVERSED, VACATED, and REMANDED as to
Bradfield.
44
United States v. Tolliver, 61 F.3d 1189, 1222 (5th Cir.
1995)(citing United States v. McCaskey, 9 F.3d 368, 380 (5th Cir.
1993), cert. denied, 511 U.S. 1042, 114 S. Ct. 1565 (1994)).
24