PUBLISH
UNITED STATES COURT OF APPEALS
Filed 9/25/96 TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-3409
GERALD T. CECIL,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 95-CR-10038)
Jackie N. Williams, United States Attorney, Stephen K. Lester, Assistant United States
Attorney, Wichita, Kansas, for Plaintiff-Appellee.
Laura B. Shaneyfelt, Focht, Hughey & Calvert, L.L.C., Wichita, Kansas, for
Defendant-Appellant.
Before TACHA, BALDOCK, and BRORBY, Circuit Judges.*
BALDOCK, Circuit Judge.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case therefore is ordered
submitted without oral argument.
Defendant Gerald T. Cecil sold a kilogram of cocaine to a confidential informant
working for the government. The government indicted Defendant for distributing a
kilogram of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. At trial,
Defendant argued that he was entrapped. The district court instructed the jury on the
defense of entrapment and the jury convicted Defendant. On appeal from his conviction,
Defendant claims the district court erroneously refused to instruct the jury that the
government had to prove that Defendant was predisposed to sell cocaine at the time he
was contacted by the confidential informant. Defendant also asserts the district court, in
response to a question from the jury, misinformed the jury that the government had to
prove that Defendant was predisposed to distribute cocaine, but did not have to prove that
Defendant was predisposed to distribute a kilogram of cocaine. We exercise jurisdiction
under 28 U.S.C. § 1291 and affirm.
I.
At trial, the district court delivered the following lengthy instruction to the jury
regarding the entrapment defense:
Defendant Cecil asserts that he was the victim of entrapment as to
the offense charged in the indictment.
Where a person has no previous intent or purpose to violate the law,
but is induced or persuaded by law enforcement officers or their agents to
commit a crime, he is the victim of entrapment, and the law as a matter of
policy forbids his conviction in such a case.
On the other hand, where a person already has the readiness and
willingness to break the law, the mere fact that government agents provide
-2-
what appears to be a favorable opportunity is not entrapment. For example,
it is not entrapment for a government agent to pretend to be someone else
and to offer, either directly or through an informer or other decoy, to engage
in an unlawful transaction.
If, then, you should find beyond a reasonable doubt from the
evidence in the case that, before anything at all occurred respecting the
alleged offense involved in this case, the defendant was predisposed to
commit a crime such as charged here, whenever the opportunity was
afforded, and that government officers or their agents did no more than
offer the opportunity, then you should find defendant Cecil was not the
victim of entrapment.
On the other hand, if the evidence should leave you with a
reasonable doubt whether defendant had the predisposition to commit an
offense of the character charged, apart from the inducement or persuasion
of some officer or agent of the government, then it is your duty to find
defendant Cecil not guilty.
Evidence of predisposition may consist of a showing of a person’s
desire for profit, his eagerness to participate in the transaction, and/or his
ready response, if any, to the government’s inducement offers.
Thus, if you find from the evidence that defendant Cecil was induced
to commit the crime addressed in the indictment, and at the time was not
predisposed to otherwise commit the crime, you must acquit the defendant.
The United States denies defendant Cecil’s contentions of fact, and
claims that his involvement was as set forth in the indictment.
The burden is on the government to prove beyond a reasonable doubt
that the defendant was not entrapped.
Vol. I., Doc. 61, Instruction No. 15 (emphasis added). During deliberations, the jury
submitted the following written question to the court:
Question on Instruction No. 15 “predisposition to commit an offense of the
character charged” Does the above wording mean the predisposition to
commit an offense of a “kilo” buy?
-3-
Vol. III, No. 2. Defendant asked the district court to give this instruction in response to
the jury’s question:
In response to your question whether the government must prove that the
defendant Cecil was predisposed to distribute a kilogram of cocaine, the
court instructs you that “predisposition” is defined as a defendant’s
inclination to engage in the illegal activity for which he has been charged,
i.e. that he is ready and willing to commit the crime. It focuses on
defendant’s state of mind before government agents suggest that he commit
a crime. Predisposition may be inferred from a defendant’s history of
involvement in the type of criminal activity for which he has been charged,
combined with his ready response to the inducement offer. The government
has the burden of proof to prove beyond a reasonable doubt that the
defendant lacked predisposition to commit the crime charged at the time
that the government agent (Jeff Schoenthaler) began his efforts to engage
the defendant in criminal conduct.
Vol I, Doc. 58. After argument from counsel, the court rejected Defendant’s suggested
instruction and sent the following answer to the jury: “No.” The jury convicted
Defendant.
II.
On appeal from his conviction, Defendant argues the district court erroneously
instructed the jury and misstated the law when it answered the jury’s question.
Specifically, Defendant contends that the district court erred by: (1) “refusing to instruct
the jury that the government must prove the defendant was predisposed to sell cocaine at
the time that the informant began contacting the defendant;” (2) refusing to deliver his
suggested instruction to the jury; and (3) responding “No” to the jury’s question whether
the government had to prove that Defendant was predisposed to distribute a kilogram of
-4-
cocaine. We address Defendant’s arguments in turn.
A.
Defendant first asserts that the district court erred by refusing to instruct the jury
that the government’s burden required it to prove that Defendant was predisposed to sell
cocaine when the confidential informant first contacted him. Defendant argues that
Instruction No. 15 was deficient as a matter of law because it “did not address, in any
meaningful manner, the important issue of timing of predisposition.” Aplt. Br. at 11.
According to Defendant, “not one reference in the instruction informs the jury that the
predisposition must have been in place at the time the informant first began contacting the
defendant.” Id. Consequently, Defendant urges us to reverse his conviction and remand
for a new trial.
We review jury instructions de novo to determine whether, as a whole, the
instructions correctly state the governing law and provide the jury with an ample
understanding of the issues and applicable standards. E.g., United States v. de
Francisco-Lopez, 939 F.2d 1405, 1409 (10th Cir. 1991). The instructions must cover the
issues presented by the evidence and accurately state the law. United States v. Davis, 953
F.2d 1482, 1492 (10th Cir.), cert. denied, 504 U.S. 945 (1992). We will reverse only
when the failure to give an instruction is prejudicial in view of the entire record. United
States v. Martin, 18 F.3d 1515, 1519 (10th Cir.), cert. denied, 115 S. Ct. 187 (1994).
The Supreme Court has distilled the principles governing the defense of
-5-
entrapment in the following passage:
[T]here can be no dispute that the Government may use undercover
agents to enforce the law. It is well settled that the fact that officers or
employees of the Government merely afford opportunities or facilities for
the commission of the offense does not defeat the prosecution. Artifice and
stratagem may be employed to catch those engaged in criminal enterprises.
In their zeal to enforce the law, however, Government agents may
not originate a criminal design, implant in an innocent person’s mind the
disposition to commit a criminal act, and then induce commission of the
crime so that the Government may prosecute. Where the Government has
induced an individual to break the law and the defense of entrapment is at
issue . . . the prosecution must prove beyond a reasonable doubt that the
defendant was disposed to commit the criminal act prior to first being
approached by Government agents.
Jacobson v. United States, 503 U.S. 540, 548-49 (1992) (quotations and citations
omitted) (emphasis added); see also United States v. Beal, 961 F.2d 1512, 1515-16 (10th
Cir. 1992); United States v. Ortiz, 804 F.2d 1161, 1164-65 (10th Cir. 1986).
Viewing Instruction No. 15 against this authoritative statement of the entrapment
defense, we conclude the challenged instruction neither misstated the law nor failed to
provide the jury with an ample understanding of the applicable standards. Instruction No.
15 did not, as Defendant urges, fail to “address, in any meaningful manner, the important
issue of timing of predisposition.” Aplt. Br. at 11. Instruction No. 15 cohered with the
Supreme Court’s statement that it is the prosecution’s burden to “prove beyond
reasonable doubt that the defendant was disposed to commit the criminal act prior to first
being approached by Government agents.” Jacobson, 503 U.S. at 549. That is,
Instruction No. 15 informed the jury at least three separate times of the importance of the
-6-
timing of the predisposition: “[w]here a person has no previous intent or purpose to
violate the law . . . he is a victim of entrapment,” and “[i]f , then, you should find beyond
a reasonable doubt from the evidence in the case that, before anything at all occurred
respecting the alleged offense involved in this case, the defendant was predisposed to
commit a crime such as charged here . . . then you should find defendant Cecil was not
the victim of entrapment,” and finally, “where a person already has the readiness and
willingness to break the law, the mere fact that government agents provide what appears
to be a favorable opportunity is not entrapment.” Vol. I., Doc. 61, Instruction No. 15
(emphasis added). Consequently, we reject Defendant’s argument that Instruction No. 15
was fatally deficient because it did not inform the jury that the government had the burden
of proving that defendant was predisposed to sell cocaine when the confidential informant
first contacted him.
B.
Next, Defendant argues that the district court erred in refusing to deliver his
suggested instruction to the jury. Defendant contends that the district court should have
tendered his instruction to the jury to “fully inform the jury” about the timing of
predisposition. Aplt. Br. at 11. We reject Defendant’s argument that the district court
erred in refusing to tender his instruction to the jury because Defendant’s instruction
misstates the law.
Defendant’s instruction provided:
-7-
The government has the burden of proof to prove beyond a reasonable
doubt that the defendant lacked predisposition to commit the crime charged
at the time that the government agent (Jeff Schoenthaler) began his efforts
to engage the defendant in criminal conduct.
Vol. I., Doc 58 (emphasis added). Contrary to Defendant’s suggested instruction, the
government does not carry the burden of proving that the defendant “lacked predisposition”
to commit the crime. Instead, Jacobson instructs that “the prosecution must prove beyond
a reasonable doubt that the defendant was disposed to commit the criminal act prior to first
being approached by Government agents.” Jacobson, 503 U.S. at 549 (emphasis added).
Thus, the government’s evidentiary burden requires it to prove that the defendant was
“disposed to commit the crime” not that the defendant “lacked predisposition to commit the
crime.” Id. Absence of predisposition to commit the crime is the defendant’s evidentiary
burden, not the government’s. E.g., Ortiz, 804 F.2d at 1165 (“The defendant must point to
evidence of both lack of predisposition and government inducement before the trial judge can
determine whether entrapment has been shown sufficiently to present it to the jury.”)
(emphasis added). Defendant’s suggested jury instruction is wrong because it contravenes
the clear mandate of Jacobson and places Defendant’s burden to raise the entrapment defense
on the government.
C.
Finally, Defendant contends that the district court misstated the law when it answered
the jury’s question regarding predisposition. Specifically, Defendant argues the district court
erred when it responded “No” to the jury’s question whether the government was required
-8-
to prove that Defendant was predisposed to distribute a kilogram of cocaine. Because he was
charged with distributing a kilogram of cocaine, Defendant maintains that the government
“had the burden of proving that the defendant was predisposed, at the time the informant first
contacted him on behalf of the police, to sell a kilogram of cocaine.” Aplt. Br. at 12. We
disagree.
When 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.” Jacobson, 503 U.S. at 549 (emphasis added); see
also Beal, 961 F.2d at 1516. Thus, Defendant’s argument requires us to determine what
criminal act the government had to prove beyond a reasonable doubt Defendant was
predisposed to commit.
Defendant was indicted (and convicted) of violating 21 U.S.C. § 841(a)(1). The drug
trafficking provision of § 841 contains two distinct parts: § 841(a) and § 841(b). Subsection
(a), entitled “Unlawful acts,” defines the criminal act, and prohibits trafficking in “a
controlled substance” without reference to quantity. Subsection (b), entitled “Penalties,”
specifies the punishment for various drug quantities and “does not itself state a criminal
offense.” United States v. Puryear, 940 F.2d 602, 604 (10th Cir. 1991). Because § 841(a)
does not refer to quantity, settled precedent recognizes that the quantity of the drug is not an
element of the offense under § 841(a). United States v. Jenkins, 866 F.2d 331, 334 (10th Cir.
1989) (“[T]he quantity of the substance in the possession of the defendant . . .is not an
-9-
element of the substantive offense upon which the [§ 841(a)] charge is based.”); United
States v. Estell, 539 F.2d 697, 699 (10th Cir.) (“It is well settled that the presence and
identity of the drug is the thing and that the quantity of it is not important.”), cert. denied, 429
U.S. 982 (1976).
In contrast, § 841(b) vests the quantity determination in the sentencing court. Puryear,
940 F.2d at 604; Jenkins, 866 F.2d at 334. “Congress clearly intended § 841(b)(1)(B) to be
a sentencing provision independent of the substantive charge to which it applies.” Jenkins,
866 F.2d at 334. Thus, a jury is not required to make a quantity finding to find a defendant
guilty of violating 21 U.S.C. § 841(a)(1). Id.
These principles demonstrate that although the government was required to prove that
Defendant was predisposed to distribute cocaine prior to first being contacted by the
confidential informant, it was not required to prove that Defendant was predisposed to
distribute a kilogram of cocaine. Although the indictment refers to one kilogram of cocaine,
the quantity of cocaine is not an element of the criminal act under § 841(a)(1). Instead, the
quantity of cocaine is legally relevant for the sentencing court under § 841(b). E.g., Jenkins,
866 F.2d at 334 (recognizing that § 841(a) does not require the jury to make a quantity
determination to return a verdict of guilty and thus a defendant is not entitled to a quantity
finding beyond a reasonable doubt). Defendant’s entrapment defense required the jury to
determine whether the government had established beyond a reasonable doubt that Defendant
was predisposed to knowingly, intentionally and unlawfully distribute cocaine in violation
-10-
of 21 U.S.C. § 841(a)(1). Consequently, we hold the district court did not err when it
informed the jury that “predisposition to commit an offense of the character charged” did not
require the government to prove, as the jury inquired, “predisposition to commit an offense
of a ‘kilo’ buy.”
AFFIRMED.
-11-