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.