United States v. Bradfield

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