United States v. King

United States Court of Appeals,

Eleventh Circuit.

No. 93-8394.

UNITED STATES of America, Plaintiff-Appellee,

v.

Alan KING and Bruce Rickard, Defendants-Appellants.

Feb. 6, 1996.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:92-CR-206-02-ODE), Orinda D. Evans,
Judge.

Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and FAY, Senior
Circuit Judge.

CARNES, Circuit Judge:

Alan King and Bruce Rickard appeal their convictions and

sentences stemming from the purchase of a kilogram of cocaine from

an undercover police detective. Both defendants were convicted for

attempting and conspiring to possess with intent to distribute

cocaine, and for using or carrying a firearm in connection with a

drug trafficking offense. For the reasons discussed below, we

affirm both defendants' convictions and sentences for the attempt

and conspiracy offenses, but we reverse their convictions and

vacate their sentences for the firearm offenses.
I. BACKGROUND

Beginning in February 1992, Scott Gandy, an informant for the

government, who was facing drug charges, attempted to arrange a

drug transaction with Defendant King. Although Gandy and King had

known each other for approximately twenty years, King twice

declined to get involved in a drug transaction with Gandy, possibly

because King was suspicious that Gandy was an informant.
Eventually, King agreed to meet with Gandy's "friend," Detective

Baxley of the Roswell Police Department, who was posing as a

cocaine seller. On June 1, 1992, in Gandy's basement, King and

Baxley met and discussed the terms of the proposed cocaine sale.

King agreed to purchase a kilogram of cocaine from Baxley, and told

him that if King's "money man" liked the cocaine King would

purchase additional quantities. During the meeting, King placed a

telephone call to his "money man," whom King referred to as

"Bruce," and told the money man "[e]verything is a go" and to

"[g]et your money together" or words to that effect. Later that

evening, King paged Baxley and asked him to bring the cocaine over.

The next day, June 2, Baxley went to King's basement apartment

to sell him the kilogram of cocaine. King let Baxley into his

apartment, and Baxley asked to see the money. King went around the

corner toward his bedroom, spoke with another male briefly, and

then reappeared with five stacks of currency. Baxley then

retrieved a fake kilogram of cocaine from his car, and placed it

inside a newspaper held by King. King took the fake cocaine, still

wrapped in the newspaper, inside. Shortly thereafter, King was

arrested. Defendant Rickard, the only other male in the house, was

arrested "in the immediate vicinity" of King's bedroom, in which

there was a triple beam scale on the dresser, a loaded .45 caliber

handgun between the mattress and box spring of the bed, and the

fake kilogram of cocaine in the closet. Rickard's fingerprint was

on the fake kilogram of cocaine. Twenty-five thousand dollars was

seized from the living room.

In August 1992, a grand jury indicted King and Rickard on
three counts each. Count 1 charged each defendant with attempting

to possess with intent to distribute cocaine in violation of 21

U.S.C. §§ 2 and 846. Count 2 charged each defendant with

conspiring to possess with intent to distribute cocaine in

violation of 21 U.S.C. § 846. Count 3 charged each defendant with

using or carrying a firearm in connection with a drug trafficking

offense in violation of 18 U.S.C. §§ 2 and 924(c).

At trial, both defendants made several motions for judgments

of acquittal, all of which the district court denied. In January

1993, a jury convicted both King and Rickard on all three counts.

King was sentenced to 123 months of incarceration, four years of

supervised release, and a $150 special assessment. Rickard was

sentenced to 168 months of incarceration, a $2,500 fine, four years

of supervised release, and a $150 special assessment. Both King

and Rickard appeal their convictions and sentences, each raising

several issues.
II. DISCUSSION

A. THE § 924(c) ISSUE

King and Rickard argue that the evidence was insufficient as

a matter of law to sustain their convictions under 18 U.S.C. §

924(c). Both defendants timely raised the issue at trial in

several motions for judgments of acquittal on Count 3, all of which

the district court denied. Since the trial, the Supreme Court has

clarified the meaning of "uses" as that term is employed in §

924(c). See Bailey v. United States, --- U.S. ----, 116 S.Ct. 501,

--- L.Ed.2d ---- (1995).

Section 924(c)(1) provides for a five-year minimum
imprisonment for a person who "during and in relation to any crime

of violence or drug trafficking crime ... uses or carries a

firearm." 18 U.S.C.A. § 924(c)(1) (West 1995). In Bailey, the

Supreme Court reversed two convictions under § 924(c), holding that

the evidence was insufficient to support either conviction under

the "use" prong. --- U.S. at ----, 116 S.Ct. at 509. The Court

held that "the language, context, and history of § 924(c)(1)

indicate that the Government must show active employment of the

firearm" to establish "use." Id. at ----, 116 S.Ct. at 506. As

applied to the two convictions in Bailey, the Court held that "a

firearm inside a bag in the locked car trunk" and one "locked in a

footlocker in a bedroom closet" did not constitute active

employment. Id. at ----, 116 S.Ct. at 509. The Court in Bailey

did not consider the "carry" prong of § 924(c). Id.

Applying Bailey, we hold that a firearm found between a

mattress and box spring in a bedroom next to the room where most of

the drug trafficking crime occurred does not constitute the type of

"active employment of the firearm" that is necessary for a

conviction under the "use" prong of § 924(c)(1). That is true even

though the drugs being purchased (here, the fake drugs) ended up in

the same room with the gun. Whatever the law in this circuit may

have been prior to Bailey, it is now clear that the mere

"conceal[ment] [of] a gun nearby to be at the ready for an imminent

confrontation" absent the "disclos[ure] or mention[ ] by the

offender" cannot form the basis for a conviction under the "use"

prong of § 924(c)(1). Id. at ----, 116 S.Ct. at 508. The

government concedes the point in a post-Bailey supplemental
authority letter.

The government also concedes that the Count 3 convictions

cannot be upheld under the "carry" prong of the statute because, in

its words, "the trial court did not instruct the jury on the

"carry' prong of 18 U.S.C. § 924(c), and the government did not

object to the § 924(c) instruction." In light of that concession,

we need not decide whether the evidence would have supported a

conviction under the "carry" prong had that theory been presented

to the jury. Accordingly, we reverse King's and Rickard's

convictions under Count 3 of the indictment, and vacate the

sentences imposed upon them pursuant to that count.

B. KING'S OTHER ISSUES

King argues that he was entrapped as a matter of law, and that

the district court erred in submitting the entrapment issue to the

jury instead of granting a judgment of acquittal on all three

counts. King also argues that the district court's jury

instruction on entrapment was inadequate because it did not

specifically state that the government must prove predisposition

beyond a reasonable doubt, and that the court should have given the

additional entrapment instructions King requested, which would have

done that.1
1. The Entrapment as a Matter of Law Issue

King moved for a judgment of acquittal on all three counts,

arguing that he was entrapped as a matter of law. The district

court denied his motion, and submitted the entrapment issue to the

1
King also makes several other arguments on appeal, all of
which we reject without further discussion.
jury. King contends that the district court's refusal to grant his

motion for judgment of acquittal was error under the Supreme

Court's holding in Jacobson v. United States, 503 U.S. 540, 112

S.Ct. 1535, 118 L.Ed.2d 174 (1992).

In Jacobson, the Supreme Court explained the government's

burden of proof in an entrapment case: "Where the government has

induced an individual to break the law and the defense of

entrapment is at issue ... the prosecution must prove beyond

reasonable doubt that the defendant was disposed to commit the

criminal act prior to first being approached by Government agents."

Id. at 548-49, 112 S.Ct. at 1540. In Jacobson itself, the Court

held that "the Government did not prove that this predisposition

was independent and not the product of the attention that the

Government had directed at petitioner...." Id. at 550, 112 S.Ct.

at 1541.

Applying Jacobson, in United States v. Brown, 43 F.3d 618

(11th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 309, 133

L.Ed.2d 212 (1995), we observed that "[e]ntrapment is generally a

jury question," and "[t]herefore, entrapment as a matter of law is

a sufficiency of the evidence inquiry." Id. at 622 (citations

omitted); see also Mathews v. United States, 485 U.S. 58, 63, 108

S.Ct. 883, 886, 99 L.Ed.2d 54 (1988) (holding that "the question of

entrapment is generally one for the jury, rather than for the

court"). Our inquiry is "whether the evidence was sufficient for

a reasonable jury to conclude that the defendant was predisposed to

take part in the illicit transaction." Brown, 43 F.3d at 622

(citing United States v. Aibejeris, 28 F.3d 97, 99 (11th
Cir.1994)). Although our review of an entrapment defense is de

novo, "we must view all facts and make all inferences in favor of

the government." Id.

King's primary argument is that Jacobson requires the

government to have evidence of predisposition before it begins its

investigation of the defendant. This Court disposed of that

contention in Aibejeris, where we held:

This is an incorrect reading of Jacobson. That case does not
stand for the proposition that the government must have
evidence of predisposition prior to investigation. Rather,
Jacobson holds that the government must prove at trial beyond
a reasonable doubt that the defendant was actually predisposed
to commit the underlying crime absent the government's role in
assisting such commission.

28 F.3d at 99. Accordingly, it matters not when the evidence of

King's predisposition to sell drugs was developed. It does matter

whether that predisposition itself existed before the government

became involved.

Turning to the sufficiency of the evidence of predisposition,

we hold that there was enough evidence that King was predisposed,

independent of any government involvement, to commit the crimes for

which he was convicted to create a jury question. A reasonable

jury could have believed Gandy's testimony that prior to Gandy

becoming an informant, King had provided narcotics to Gandy on more

than one occasion. Likewise, a reasonable jury could also have

believed Gandy's testimony that during the time Gandy was acting as

an informant, King was dealing drugs with others but refused to

deal with Gandy because King was suspicious that Gandy was an

informant. Finally, a reasonable jury could have believed Gandy's

testimony that even though Gandy made his first offer to engage in
drug transactions with King on March 29, 1992, King had told Gandy

on February 14, 1992, that "Alphonso" was coming from Florida with

two "killer" kilograms of cocaine. All of this evidence supports

the conclusion that King was predisposed to commit the crime,

independent of any government involvement. Unlike the situation in

Jacobson, much of the evidence about predisposition in this case

was evidence of the defendant's conduct and statements prior to the

government's involvement, and therefore was "independent and not

the product of the attention that the Government ... directed at

[the defendant]," see Jacobson, 503 U.S. at 550, 112 S.Ct. at 1541.

We hold that the district court properly denied the defendant's

motion for judgment of acquittal as to Counts 1 and 2, and properly

submitted the entrapment defense to the jury.
2. The Entrapment Jury Instruction Issue

The district court gave the Eleventh Circuit pattern jury

instruction on entrapment, which King requested, but did not give

the additional entrapment instructions requested by King. In

particular, King sought to have the jury instructed separately and

specifically that when the defendant shows government inducement

existed, the burden shifts to the government to prove beyond a

reasonable doubt that the defendant was not entrapped. King claims

that the lack of such a specific instruction was reversible error,

given the Supreme Court's recent statement in Jacobson that "the

prosecution must prove beyond a reasonable doubt that the defendant

was disposed to commit the criminal act prior to being approached

by Government agents." Jacobson, 503 U.S. at 549, 112 S.Ct. at

1540. King argues that Jacobson changed the law so that when
government inducement exists, the government now bears the burden

of proving beyond reasonable doubt that the defendant was not

entrapped, and any pre- Jacobson holdings on this issue are no

longer good law.

The pattern entrapment instruction given by the district court

states that "if the evidence in the case leaves you with a

reasonable doubt whether the Defendant had any intent to commit the

crime except for inducement or persuasion on the part of some

Government officer or agent, then it is your duty to find the

Defendant not guilty." In addition to the pattern instruction on

entrapment, the court also gave the general pattern instruction on

the government's burden of proof in criminal cases, which states

that the government must prove each element of the offenses beyond

reasonable doubt.

The government argues that the pattern entrapment instruction

was sufficient. First, the government contends that Jacobson did

not alter the well-established law that when government inducement

exists, the burden is on the government to prove predisposition

beyond reasonable doubt. We agree. To begin with, Jacobson only

incidentally dealt with the reasonable doubt issue; the central

concern of the decision was the temporal frame regarding the

defendant's predisposition. In particular, Jacobson held that the

government must prove that the defendant was disposed to committing

the criminal act prior to being approached by government agents.

Although one clause from the Jacobson opinion does state that a

defendant's predisposition must be proven beyond reasonable doubt,

that clause simply restated well-established entrapment law
regarding the burden of proof. See, e.g., United States v. Vadino,

680 F.2d 1329, 1337 (11th Cir.1982) (stating that government bears

burden of proof beyond reasonable doubt in entrapment case), cert.

denied, 460 U.S. 1082, 103 S.Ct. 1771, 76 L.Ed.2d 344 (1983);

United States v. Smith, 588 F.2d 111, 116 n. 25 (5th Cir.) (same),

modified on other grounds, 594 F.2d 1084 (1979); United States v.

Benavidez, 558 F.2d 308, 310 (5th Cir.1977) (same); United States

v. Silver, 457 F.2d 1217, 1220 (3d Cir.1972) (referring to fact

that burden of proof beyond reasonable doubt is on government in

entrapment case as a "settled principle[ ]"). Thus Jacobson dealt

with what the government must prove beyond a reasonable doubt once

inducement is shown in an entrapment case; but it did not change

the law that the government, not the defendant, bears that burden

of proof once inducement is shown. That has long been the law.

Second, the government argues that because Jacobson did not

change the law regarding the burden and standard of proof in an

entrapment case, this Court's prior decisions upholding the pattern

entrapment instruction, as well decisions upholding virtually

identical instructions, against similar challenges are binding upon

this panel. See United States v. Davis, 799 F.2d 1490, 1493-94

(11th Cir.1986) (upholding pattern entrapment instruction as

"simply and clearly" instructing the jury about the government's

burden of proof beyond a reasonable doubt, despite defendant's

contention that instruction must "detail the shifting burdens of

production and proof"); United States v. Sonntag, 684 F.2d 781,

787 (11th Cir.1982) (upholding virtually identical entrapment

instruction against challenge that instruction was "deficient
because it fails to unequivocally state that the government has the

burden of proving beyond a reasonable doubt that the defendant was

not entrapped"); Vadino, 680 F.2d at 1337 (upholding virtually

identical entrapment instruction against challenge that instruction

should specifically state that the burden of proving that the

defendants were not entrapped was on the government). Again, we

agree. See, e.g., Cuban Am. Bar Ass'n. v. Christopher, 43 F.3d

1412, 1424 n. 9 (11th Cir.) (subsequent panel is bound by precedent

established by prior panel), cert. denied, --- U.S. ----, 115 S.Ct.

2578, 132 L.Ed.2d 828 (1995).

As part of his argument that Jacobson changed the law

regarding the burden or standard of proof in entrapment cases and

that our pre-Jacobson holdings are thereby invalid, King argues

that our post-Jacobson decision in Brown casts doubt on those prior

holdings. Brown upheld the pattern entrapment instruction against

a challenge that the instruction did not sufficiently inform the

jury that the defendant's predisposition must have existed before

any contact with government officers or agents. Even so, King

contends that Brown supports his position that the pattern

entrapment instruction was insufficient. In particular, King

points to certain statements in a footnote in which we observed

that, "it is not difficult to imagine a case where the Eleventh

Circuit pattern instruction could mislead the jury," and that

"other circuits have clarified their entrapment instructions in

light of Jacobson." Brown, 43 F.3d at 628 n. 8. However, the

remainder of the footnote, which King does not acknowledge, makes

clear that in Brown we were referring to an issue wholly distinct
from the present one. The remainder of the footnote explains that,

in "long and complex government campaign[s]," like that occurring

in Jacobson, "extra clarity [beyond that provided by the pattern

instruction] would be required to keep the temporal frame in

focus." Brown, 43 F.3d at 628 n. 8 (emphasis added). This

reference to "temporal frame" makes clear that the footnote in

question addressed only the particular issue raised in the Brown

case: whether the pattern entrapment instruction sufficiently

instructed the jury that the defendant's predisposition must have

existed before any contact with government officers or agents. The

Brown opinion does not address the present issue, which is whether

the pattern entrapment instruction sufficiently instructed the jury

that when government inducement is demonstrated, the burden is on

the government to prove predisposition beyond reasonable doubt.

Therefore, Brown could not cast any doubt on the continuing

validity of any prior decisions on that issue.

We hold that our pre-Jacobson decisions upholding the pattern

entrapment instruction against challenges that it fails to

adequately address the burden and standard of proof, see Davis, 799

F.2d 1490; Sonntag, 684 F.2d 781; Vadino, 680 F.2d 1329, are

still good law. No additional instruction that the burden is on

the government to prove predisposition beyond a reasonable doubt is

required to comply with Jacobson. Our conclusion is the same as

that of the Vadino Court: although it may "have been better to

include within the entrapment instruction itself an instruction on

burden of proof, the jury instruction considered as a whole was

sufficient." 680 F.2d at 1337.
C. RICKARD'S OTHER ISSUES

Rickard argues that the district court erred in refusing, on

hearsay grounds, to admit certain post-arrest statements of King,

that were exculpatory of Rickard.2 At trial, Rickard sought to

have King's post-arrest statements admitted as exceptions to the

hearsay rule, under Federal Rules of Evidence 803(1), (2), and

(24), and 804(b)(3). After hearing extensive arguments from all of

the parties, the district court granted the government's motion in

limine to exclude King's post-arrest statements. Although Rickard

wished to make further arguments at that time, the court stated

that it needed to "move ahead," and that "if counsel feel at a

certain point that they should be entitled to ask about [King's

post-arrest statement], bring it up outside the jury's presence and

[the court] will reconsider it." Thereafter, during the trial, the

court did hear additional argument and reconsider whether to admit

King's post-arrest statements, but the court decided not to do so.

On appeal, Rickard raises a new argument for the admission of

King's post-arrest statements—that those statements should have

been admitted for the limited purpose of impeaching, in accordance

with Federal Rule of Evidence 806, statements made by King that

tended to incriminate Rickard. Certain pre-arrest statements made

by King that tended to incriminate Rickard were admitted, over

Rickard's objection, under the co-conspirator exception to the

hearsay rule. See Fed.R.Evid. 801(d)(2)(E). Rickard now argues

that King's post-arrest statements should have been admitted under

2
Rickard raises several other arguments on appeal, all of
which we reject without further discussion.
Rule 806, because that rule allows a party to attack or support the

credibility of a hearsay declarant "by any evidence which would be

admissible for those purposes if [the] declarant had testified as

a witness." Rickard's argument is that because King's post-arrest

statements exculpating King would have been admissible as prior

inconsistent statements had King actually testified to the Rule

801(d)(2)(E) statements incriminating Rickard, those post-arrest

statements should have been admitted under Rule 806 even though

King did not take the stand. The argument appears to have merit,

but it comes too late.

Rickard's theory for the admission of King's post-arrest

statements under Rule 806 was not even suggested at trial,3 and is

thus "a new, previously unasserted basis for the admissibility of

[the] evidence." United States v. Grapp, 653 F.2d 189, 194 (5th

Cir. Aug. 10, 1981). "As a general rule, a reviewing court will

only consider those matters first raised in the trial court." Id.;

see also United States v. Walther, 867 F.2d 1334, 1343 (11th Cir.),

cert. denied, 493 U.S. 848, 110 S.Ct. 144, 107 L.Ed.2d 103 (1989);

United States v. Thompson, 710 F.2d 1500, 1504 (11th Cir.1983),

cert. denied, 464 U.S. 1050, 104 S.Ct. 730, 79 L.Ed.2d 190 (1984).

3
Rickard contends that in the district court he sought to
have King's post-arrest statements admitted under Rule 806.
However, our thorough review of the record convinces us beyond
doubt that Rickard did not argue for admission of King's
post-arrest statements under Rule 806 or the ground contained
therein, despite repeated opportunities to do so. Cf. United
States v. Madruga, 810 F.2d 1010, 1014 (11th Cir.1987) ("We ought
not, and do not, expect some sort of ritualistic incantation from
trial lawyers to make an effective objection; but we can and do
expect plain talk sufficient to direct the presiding officer's
attention to the existence of an objection and to the specific
ground that underlies the objection.").
When, as here, the proper basis for admission is not presented to

the district court, we can review the court's evidentiary ruling

only for plain error. See, e.g., Walther, 867 F.2d at 1343-44

(rejecting party's previously unasserted objection to evidence

admitted at trial because not plain error); see also Fed.R.Crim.P.

52(b).

The Supreme Court has established a three-step process for

analyzing plain error: (1) there must be error; (2) the error

must be plain; and (3) the error must affect substantial rights.

United States v. Olano, 507 U.S. 725, ----, 113 S.Ct. 1770, 1776,

123 L.Ed.2d 508 (1993); see also, United States v. Vazquez, 53

F.3d 1216 (11th Cir.1995). "If these three prongs are met, we then

have the discretion to correct the error, and we should do so if

that error "seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.' " Vazquez, 53 F.3d at 1221

(quoting Olano, 507 U.S. at ----, ----, 113 S.Ct. at 1776, 1779)

(alteration in original). The plain error test is "difficult to

meet," and its "purpose ... is to enforce the requirement that

parties object to errors at trial in a timely manner so as to

provide the trial judge an opportunity to avoid or correct any

error, and thus avoid the costs of reversal." United States v.

Sorondo, 845 F.2d 945, 948-49 (11th Cir.1988) (quoting United

States v. Chaney, 662 F.2d 1148, 1151 n. 4 (5th Cir. Unit B 1981)).

We need not discuss the entire plain error test because the

second prong of the test—that the alleged error be plain—is not

met. The Supreme Court has stated that " "[p]lain' is synonymous

with "clear' or, equivalently, "obvious.' " Olano, 507 U.S. at ---
-, 113 S.Ct. at 1777. The government argues that even assuming

that the district court's refusal to admit King's post-arrest

statements was error, the error was not plain because Rickard

failed to even indirectly raise the Rule 806 basis for the

statements' admission despite repeated opportunities to do so.

We agree with the government that Rickard's failure throughout

the trial to argue even indirectly the basis he now asserts for the

statements' admission, despite repeated opportunities to do so,

indicates that the error, if any, is not plain. This is not a

situation where, due to lack of attention or the pace of events,

ground was skipped over. Instead, Rickard's counsel focused

considerable energy on getting King's post-arrest statements into

evidence, and in her arguments to the district court she thoroughly

plowed the ground for admissibility, but did not raise the basis

she now asserts. The district court heard from counsel before

trial, correctly rejected every basis of admissibility she argued,

invited her to return to the matter as it arose during the trial,

heard from her again, and again correctly rejected every proffered

basis for admissibility.4 If the error in not admitting the

hearsay statements had been "plain," as the plain error rule

requires, then Rickard's counsel, who is quite experienced in

federal criminal defense work, and who focused at some length upon

the matter, would have recognized the basis for admissibility and

4
Rickard also argues that the district court's refusals to
admit King's post-arrest statements based upon the grounds
Rickard raised at trial—Rules 803(1), (2), and (24), and
804(b)(3)—were abuses of discretion. We conclude that these
arguments are without merit and do not require further
discussion.
brought it to the attention of the district court. She did not.

To apply the plain error exception to the contemporaneous objection

rule in such circumstances would lead to the exception swallowing

the rule, much to the detriment of the important values protected

by the rule. Accordingly, we hold that the district court did not

commit plain error in refusing to admit the statements.
III. CONCLUSION

We AFFIRM King's and Rickard's convictions and sentences on

Counts 1 and 2, but REVERSE their convictions and VACATE their

sentences on Count 3. We REMAND the case to the district court for

further proceedings consistent with this opinion.