United States v. Sligh

Court Case Details
Court Case Opinion

Filed:

May 20, 1998

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 97-4284

(CR-96-335-CCB)

United States of America,

Plaintiff - Appellee,

versus

Vaughn Monroe Sligh,

Defendant - Appellant.

O R D E R

The Court amends its opinion filed April 29, 1998, as follows:

On page 2, first paragraph of opinion, line 1 -- a comma is

added in "$7,000."

On page 4, first full paragraph, line 4 -- a comma is added

after the phrase "in Sligh's mind."

On page 10, first full paragraph, line 2 -- a comma is added

after the word "overtures."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

No. 97-4284

VAUGHN MONROE SLIGH,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CR-96-335-CCB)

Argued: January 26, 1998

Decided: April 29, 1998

Before LUTTIG, Circuit Judge, PHILLIPS, Senior Circuit Judge,
and MORGAN, United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Luttig wrote the
majority opinion, in which Judge Morgan joined. Senior Judge Phil-
lips wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Harry Levy, SCHULMAN, TREEM, KAMINKOW &
GILDEN, P.A., Baltimore, Maryland, for Appellant. William Warren
Hamel, Assistant United States Attorney, Baltimore, Maryland, for
Appellee. ON BRIEF: Kenneth W. Ravenell, Andrew H. Levine,

SCHULMAN, TREEM, KAMINKOW & GILDEN, P.A., Baltimore,
Maryland, for Appellant. Lynne A. Battaglia, United States Attorney,
Baltimore, Maryland, for Appellee.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

Defendant Vaughn M. Sligh paid a $7,000 bribe to an IRS agent to
change his tax debt to "uncollectible" status, and was thereafter
indicted for bribery, payment of an illegal gratuity, and interference
with the administration of the Internal Revenue Laws. At trial, Sligh
admitted to paying the bribe to the IRS employee, but offered the
defense of entrapment in his opening statement. After the close of the
government's evidence and after most of the defense case (but prior
to the defendant's testimony), the defense sought a ruling as to
whether the court intended to instruct the jury on entrapment. The
court ruled that Sligh was not entitled to an entrapment defense
because there was insufficient evidence from which a jury could find
government inducement. J.A. at 327-28.

Sligh then entered into a plea agreement, which preserved his right
to appeal the district court's ruling on entrapment and the court's
related evidentiary ruling, which barred the defense from presenting
evidence about the IRS agent's attendance at a bribery awareness
seminar and her training and experience in bribery. The court sen-
tenced Sligh to five months imprisonment.

Because a jury could reasonably conclude that Sligh was entrapped
by the IRS agent with whom he dealt, Sligh was entitled to the entrap-
ment instruction he requested. Accordingly, we vacate Sligh's convic-
tions and remand to the district court for further proceedings.

I.

An entrapment defense has two elements: government inducement
and the defendant's lack of predisposition to commit the crime. See
United States v. Daniel, 3 F.3d 775, 778 (4th Cir. 1993). Entrapment

2

is an affirmative defense, and the defendant has the initial burden to
"produce more than a scintilla of evidence that the government
induced him to commit the charged offense," id., before the burden
shifts to the government to prove beyond a reasonable doubt that the
defendant was predisposed to commit the crime, United States v.
Jones, 976 F.2d 176, 179 (4th Cir. 1992) (noting that once a defen-
dant has met "his initial burden of presenting evidence that the gov-
ernment induced him to commit the crime, the government has the
burden of proving `beyond reasonable doubt that the defendant was
disposed to commit the criminal act prior to first being approached by
Government agents'" (quoting Jacobsen v. United States, 503 U.S.
540, 549 (1992)) (other citations omitted)); see also United States v.
Singh, 54 F.3d 1182, 1189 (4th Cir. 1995) ("[T]he defendant must
produce `sufficient evidence from which a reasonable jury could find'
that the government induced him to commit the charged offense."
(citation omitted)). A defendant is not entitled to an entrapment
instruction unless he can meet this initial burden of producing some
evidence of government inducement. See United States v. Osborne,
935 F.2d 32, 38 (4th Cir. 1991).

"`Inducement' is a term of art: it involves elements of governmen-
tal overreaching and conduct sufficiently excessive to implant a crim-
inal design in the mind of an otherwise innocent party. Solicitation,
by contrast, is the provision of an opportunity to commit a criminal
act." Daniel, 3 F.3d at 778 (citation omitted). A showing of mere gov-
ernment solicitation is insufficient to merit an entrapment instruction
"because solicitation by itself is not the kind of conduct that would
persuade an otherwise innocent person to commit a crime, or that
would be `so inducive to a reasonably firm person as likely to dis-
place mens rea.'" Osborne, 935 F.2d at 38 (citations omitted).

Applying these principles, we believe a jury could readily conclude
that the IRS crossed the line between solicitation and inducement in
its interactions with the defendant. From the telephone conversations
discussed below, a jury could find that the IRS agent first refused to
provide Sligh with even rudimentary information concerning the
agency's guidelines on debt reduction which would have enabled him
to evaluate whether he was entitled to relief, thus forcing him to play
a guessing game with her as to whether his circumstances would enti-
tle him to relief under the agency's rules. It could find that, despite

3

the IRS agent's efforts to characterize Sligh's necessarily uninformed
questions as offers of wrongdoing, it was not Sligh, but the agent her-
self, who actually initiated the suggestion of wrongdoing. It could fur-
ther find that Sligh repeatedly ignored the agent's invitations to
wrongdoing, but that the agent nevertheless persisted in her baiting of
Sligh. It could also reasonably find that when Sligh still did not accept
the agent's overtures to wrongdoing, the agent introduced, as well, the
specific idea of a bribe. And, finally, the jury could find that Sligh
continued to ignore even these official invitations to bribery until the
moment the bribe was offered.

Based upon these findings, the jury in turn could reasonably con-
clude that the IRS did much more than provide Sligh with an opportu-
nity for criminal conduct to which he was predisposed. It could
conclude that the IRS implanted the criminal design in Sligh's mind,
and, in a deliberate effort to realize the design it implanted, the
agency overreached in a manner and to a degree that it must be said
that Sligh was the victim of government entrapment.

II.

Sligh had numerous contacts and conversations with the IRS before
the day on which he offered the bribe which is the subject of this
appeal. After initial conversations with two other IRS agents, Sligh's
primary contacts were with Nancy O'Neill, manager of the Auto-
mated Collection group in Baltimore. Between May 16 and June 13,
1996, Sligh spoke with O'Neill five times, sometimes for as long as
an hour.

During these conversations, Sligh told O'Neill that he intended to
complete and file his tax returns, and O'Neill established a deadline
for him to do so. J.A. at 57-59, 96. Sligh and O'Neill discussed a levy
the IRS had placed on Sligh's bank account, numerous letters Sligh
had sent to the IRS requesting that the IRS explain why he was obli-
gated to pay taxes, and the possibility of payment of outstanding taxes
through a home equity loan. J.A. at 57-59, 95-96. They also discussed
the possibility that Sligh might not owe money or might be entitled
to a refund, and O'Neill stated that, under those circumstances, she
would consider removing the levy from Sligh's bank account. J.A. at

4

98-99. O'Neill advised Sligh that she had the power to remove the
levy on his account. J.A. at 99.

Sligh initiated several of these conversations, calling to update
O'Neill on his progress in completing his tax returns. On June 4,
1996, Sligh called O'Neill to request some additional forms in order
to file his return. J.A. at 61. On June 6, 1996, Sligh contacted O'Neill
and spoke with her briefly to inform her that he had completed his
1995 tax return and that he owed several thousand dollars in 1995
taxes. J.A. at 102-03. On June 13, 1996, Sligh spoke with O'Neill for
a fifth time and requested additional time to file his returns. O'Neill
granted him a short extension to June 24, 1996. J.A. at 63, 104-06.

O'Neill admits that during these many conversations, Sligh did not
offer a bribe, suggest that he was willing to offer a bribe, or in any
way allude to a bribe. J.A. at 105. Nor did Sligh allude to any other
form of wrongdoing. In fact, O'Neill testified that, during this time,
she believed Sligh was endeavoring to complete his tax returns. J.A.
at 99. And, indeed, all evidence indicated that Sligh intended to file
his missing returns and arrange for payment.

Then, on June 14, 1996, O'Neill attended an IRS bribery aware-
ness course. J.A. at 106.*

Ten days later, Sligh telephoned O'Neill again. And, again, in this
sixth conversation, Sligh did not even allude to, much less offer, a
bribe to O'Neill. In fact, in this conversation, Sligh informed O'Neill
that he had gone to the IRS office in Baltimore; that he had obtained
assistance in preparing his tax returns; that he wanted to provide
O'Neill with information from the completed forms for 1990, 1991,
and 1994; that he owed taxes for all three of those years; and that he
was mailing the tax returns. J.A. at 63-64, 155-57.
_________________________________________________________________

* The district court excluded evidence regarding O'Neill's attendance
at the bribery awareness seminar and her training and experience in iden-
tifying bribery attempts. Because, apart from its relevance to the IRS
agent's subjective state of mind, this evidence is of obvious relevance to
an objective evaluation of the government's interaction with Sligh, the
exclusion of this evidence was in error.

5

Three days later, Sligh again called O'Neill and requested a short
extension of time for filing his 1994 return so that he could investi-
gate a possible moving expenses deduction. J.A. at 163-64. During
this call, O'Neill reviewed Sligh's financial statement and calculated
a monthly payment figure for Sligh to pay off his tax debt. J.A. at 64-
68. The conversation lasted approximately an hour. J.A. at 68, 163-
64. At the end of the conversation, O'Neill asked Sligh if he had any
questions. J.A. at 68. According to O'Neill, Sligh "lowered his voice
and asked me how much power do I have." Id. O'Neill replied,
"[W]hat do you mean?", J.A. at 69, and Sligh asked, "[C]an you take
care of part of it?" Id.

At this, although Sligh had said nothing at all that would prompt
a reasonable person to conclude that he was offering or about to offer
O'Neill a bribe, O'Neill later testified: "a chill went down my spine
because I knew at that point he was going to try to bribe me or do
something." Id.

Based only upon Sligh's question whether O'Neill had the power
to take care of part of his existing debt, O'Neill asked if she could call
Sligh back. She then immediately contacted the IRS Internal Investi-
gation Office, which placed a listening device on O'Neill's telephone
and arranged for her to make a recorded call to Sligh later that day.
J.A. at 70-71.

During the later, recorded conversation that same day, O'Neill con-
firmed to Sligh that she did have the power to take care of part of the
debt under certain circumstances: "I have the uh, power to adjust your
balance due under certain criteria, but I need a reason." J.A. at 482.
Upon this confirmation of O'Neill's power, Sligh did not offer a bribe
as O'Neill had apparently expected he would. Rather, in an attempt
to offer reasons that would bring him within the agency's guidelines
for debt reduction, Sligh explained that he had not received a timely
response to his letters to the IRS and that he wanted to pay about half
of what he owed. J.A. at 482-83. O'Neill then explained two legal
options for reducing what Sligh owed the IRS -- offer and compro-
mise or penalty abatement requests -- and that she would need a "rea-
sonable cause" to pursue either option. J.A. at 483. Sligh offered a
variety of reasons that his debt should be reduced, including work
stress, white racism, and his lack of information about how the system

6

worked. J.A. at 483-85. O'Neill responded that she understood his sit-
uation and wanted to help, and stated "I just need some way or rea-
son"; she also explained that reasons like racism were not going to
"cut it" as the "official reason." J.A. at 485.

Throughout this conversation, and indeed throughout all of her
conversations with Sligh, O'Neill withheld from Sligh the informa-
tion that would permit him to make an informed decision as to
whether he had a reason for reduction of his debt that would fit within
the guidelines. Indeed, O'Neill refused to give Sligh any guidance
about what sort of reasons were legitimate or sufficient under the
guidelines. Sligh, thus, continued to offer a variety of reasons for
reducing his tax debt, none of which apparently fit within the IRS
guidelines, including the fact that the IRS had not answered his letters
asking why he had to pay taxes, that he had a daughter he needed to
put through college, and that he was hard-working. J.A. at 486-88.

Eventually, as Sligh continued to offer reason after reason that
might possibly justify reduction or waiver of his debt, O'Neill initi-
ated a suggestion that Sligh might ask her to engage in wrongdoing
by departing from what the guidelines required:

O'Neill: I need a legitimate reason to cut [your] balance
in half.

Sligh: Yes, ma'am.

O'Neill: Unless, you're asking me to [do] something
otherwise. Is that what you're asking?

J.A. at 496 (emphasis added). In response to what O'Neill presumably
believed was a direct solicitation of the bribe she had concluded Sligh
intended to offer her, Sligh said only the following:

Sligh: Well, I don't know what you're able to do.
Really, I don't, I don't know what you're able to
do. You know?

O'Neill: I can do anything within reason.

7

Sligh: Yes ma'am.

Id.

Then almost as if she had been urged to do so to avoid a suggestion
of improper inducement, O'Neill corrected herself to say not that she
could do anything within reason, but that she needed a reason, in
order to reduce Sligh's debt: "Oh, and I'm sorry, I'm sorry, I mis-
spoke, I mean, I need a reason." Id. Still, Sligh never even as much
as suggested wrongdoing, much less a bribe. He simply repeated his
request that O'Neill tell him what the guidelines were: "Well, see I
can't, I can give you my reason, you know, but my reason just might
not fit within your guidelines. So, I guess what I'm saying to you, you
give me the guidelines and I can work out a reason within those
guidelines." Id.

Despite O'Neill's initiation of the suggestion that Sligh ask her to
depart from the guidelines, Sligh did not do so, and merely continued
to offer reasons that might satisfy the guidelines which O'Neill
refused even to describe to him. And, although Sligh had done noth-
ing other than ask O'Neill to exercise whatever power she possessed
to reduce his tax debt and attempt, not knowing what the IRS' guide-
lines were, to provide her with legitimate reasons for doing so,
O'Neill persisted in her suggestion that Sligh might (or should) ask
her to do something unauthorized:

O'Neill: . . . unfortunately, based on what you've told me,
there's not really anything I can do.

Sligh: (Sighs) You're saying there's nothing you can do.

O'Neill: Not, not for those reasons.

Sligh: Hum. So you're saying the reasons that I gave
you are not within the guidelines that you have
before you?

O'Neill: Right.

Sligh: That's what you're saying.

8

O'Neill: Yes.

Sligh: Okay. But you're not at liberty to tell me what
the guidelines are?

O'Neill: No, I mean I have to do it based on what you tell
me, not me giving you the guidelines, unless you
wanted me to deviate.

J.A. at 501 (emphasis added).

Still, rather than take the agent's bait, Sligh simply replied, "Well,
you know, for, you know, if it's a matter, (Laughter) if it deviates, I
don't you know, I don't care, you know," id . -- an answer that
appears to reflect no more than Sligh's understandable indifference as
to whether, in his case, the IRS followed the technical guidelines,
which the agent refused even to explain to him, or made an exception
for him.

Obviously aware at this point that Sligh had no apparent intention
to offer a bribe and that she was having no success in steering him
toward the offer of a bribe, O'Neill then invited a bribe more explic-
itly by asking Sligh, in essence, "What's in it for me?":

O'Neill: But why would I take that risk?

Sligh: Cause you love me? (Laughter) You know, I
don't know. I mean, you know what --

O'Neill: I'd be risking my job.

Id. (emphasis added).

At this point, Sligh had still never suggested that O'Neill engage
in any sort of wrongdoing, much less suggested that he would offer
a bribe. Nevertheless, O'Neill continued to act as though Sligh had,
in fact, already suggested as much, and stated that what Sligh was
asking her to do "[wa]sn't really right." J.A. at 503. Despite O'Neill's
explicit recharacterization of Sligh's entirely appropriate request for

9

guidance as a request that she engage in wrongdoing or that she
accept a proffered bribe, Sligh yet again resisted O'Neill's overtures
and continued to try to convince her to reduce his balance by citing
other reasons he believed might be legitimate, like the fact that the
house he grew up in was lost to taxes. Id.

O'Neill, seemingly frustrated that Sligh had not responded to any
of her overtures, then resorted to even more explicit invitations:

O'Neill: Okay. Um, you know, what you were saying
before, I mean, I'd like to help you out, um,
you're asking me to do a favor that I have to fal-
sify for some reason why I need a reason to take
such a, take a risk in that kind of situation.

[Sligh said that he could be suicidal if it made her feel better
and that he wished God would give him the words to say to
her.]

O'Neill: Oh. Um, Do you want me to make up a reason?

Sligh: (Sighs)

O'Neill: Is that what you're asking?

Sligh: Ma'am, I don't want to go to jail okay? And um,
you know, I don't know, who, is this recorded?

O'Neill: No, uh uh.

Sligh: Um, then um, yeah. (Laughter.) And I would say
that I would be forever in your debt and I would,
uh --

O'Neill: Well, I could go to jail, too.

Sligh: Ma'am, anything you would say I would agree
with.

O'Neill: Uh huhn.

10

Sligh: So, you know, only thing I have is me, and you
and God right now. That's all I have. That's it.

O'Neill: Yeah, I mean I, I just can't take that kind of risk.

J.A. at 506-07 (emphasis added).

Sligh, at this point, finally appears to have assented at least to
O'Neill's suggestion that she make up a reason to justify reducing his
tax debt, but he still had not given any indication whatsoever that he
intended to offer her a bribe. Indeed, when O'Neill continued to state
that she did not think taking the "risk" was worth it for her, rather
than offer her a bribe to make it "worth" her while, Sligh instead only
attempted to appeal to her sympathies by urging her to meet with him
and his family. J.A. at 507-10.

O'Neill then took the extraordinary step of agreeing to meet with
Sligh, and the further extraordinary step of refusing to allow Sligh's
wife to be present, explaining, despite any predicate from Sligh, that
she did not want Sligh's wife to know that he was "doing something
that's not legal, necessarily." J.A. at 510. Thus, O'Neill once again
reintroduced the idea of a bribe into her conversation with Sligh, even
though Sligh had never made such an overture and in fact had ignored
O'Neill's multiple suggestions of wrongdoing and her initial sugges-
tions of a bribe.

Even so, Sligh yet again explicitly and categorically resisted
O'Neill's attempt to solicit a bribe, responding: "No ma'am, that's not
what I'm saying. . . . I just want to, to comfort you. To let you know
that, you know, I'm not, you know, I'm a genuine person." Id.
Finally, even during the lunch meeting at which Sligh eventually did
offer to make O'Neill a bribe, he initially continued to offer other rea-
sons why O'Neill should reduce his tax debt, J.A. at 529-533, before
eventually offering to make the bribe for which he now stands con-
victed. And, of course, Sligh did not even have with him at this meet-
ing the money that he ultimately promised O'Neill in return for her
reduction of his tax debt.

We are convinced that a jury quite well could conclude, and rea-
sonably so on the strength of these facts, that Sligh's bribe of O'Neill

11

was, in reality, the crime of an overzealous bureaucrat who, because
of her recent "training," if not for other reasons also, was bent upon
finding the nefarious in the wholly innocent; that this employee not
only implanted the bribery scheme in a mind that had never contem-
plated bribery, but then overreached in her zeal to have that design
acted upon. That is, we are satisfied that a jury could reasonably con-
clude that the IRS, far from merely creating the opportunity for ille-
gality, conceived and inspired the illegality in the face of the
defendant's demonstrated lack of predisposition to any crime at all.
The defendant therefore was entitled to an instruction that would
enable a jury to find that he was a victim of government entrapment,
and it was error for the court not to have agreed to give such an
instruction.

III.

The judgment of the district court is reversed, and the case
remanded for such further proceedings as may be necessary.

REVERSED AND REMANDED

PHILLIPS, Senior Circuit Judge, dissenting:

I think the district court properly ruled that the evidence did not
suffice to require submission of an issue of entrapment to the jury.
Though Agent O'Neill's endeavors leading up to Sligh's offer of a
bribe were persistent, possibly deceitful in some respects, and surely
intended to invite the end result, they fell well short of the kind of
overreaching government conduct that we have considered necessary
to support an entrapment defense. I therefore dissent and would
affirm the conviction for the conceded bribe offer.

The majority correctly states the controlling legal principles of
entrapment, both substantive and procedural. Under those principles,
the only issue before us is whether there was evidence "more than a
scintilla" from which a jury properly could find that O'Neill's con-
duct crossed the line between permissible "solicitation" of the bribe--
merely providing an opportunity for its offer--and possibly exculpat-
ing "inducement" of the offer--actually causing a criminal intent in

12

Sligh's mind that would not otherwise have existed. See United States
v. Daniel, 3 F.3d 775, 778 (4th Cir. 1993) (differentiating the two).
While the weight or quantity of the required evidence of inducement
is slight, the content requirement is rigorous. The conduct evidenced
must be so severe and pervasive that it can legitimately be viewed as
sufficient to overcome the will of a reasonable person. See Crisp v.
United States, 262 F.2d 68, 69 (4th Cir. 1958). As we have character-
ized it more recently, it must involve "governmental overreaching"
sufficient "to implant a criminal design in the mind of an innocent
party," United States v. Phan, 121 F.3d 149, 154 (4th Cir. 1997), cert.
denied, 118 S. Ct. 1038 (1998) (footnote omitted), and as conduct
"likely to displace mens rea." United States v. DeVore, 423 F.2d
1069, 1072 (4th Cir. 1970). And it is insufficient to meet this induce-
ment requirement merely to establish that the government was the
first to suggest the illegal conduct. See United States v. El-Gawli, 837
F.2d 142, 149 (3d Cir. 1988).

Short of conduct actually calculated to "implant a criminal design"
in an innocent mind--no inconsiderable feat--federal law has long
permitted, out of perceived necessity, law-enforcement endeavors that
invite criminal conduct, or make it convenient, or that employ
"[a]rtifice and stratagem" in order to "catch those engaged in criminal
enterprises." Jacobson v. United States, 503 U.S. 540, 548 (1992)
(citing Sorrells v. United States, 287 U.S. 435, 441 (1932); Sherman
v. United States, 356 U.S. 369, 372 (1958); United States v. Russell,
411 U.S. 423, 435-36 (1973)). In deference to this recognized neces-
sity, the federal courts have in general found a basis for allowing an
entrapment issue to go to the jury only in unique and compelling situ-
ations. See United States v. Gendron, 18 F.3d 955, 961-62 (1st Cir.
1992) (collecting cases). Examples include physical threat, see United
States v. Becerra, 992 F.2d 960, 963 (9th Cir. 1993) (physical threats
to defendant's family); and falsely-based appeals to sympathy, see
United States v. Nations, 764 F.2d 1073, 1080 (5th Cir. 1985) (false
claims of cancer to induce aid in selling stolen cars).

The evidence here, though it surely could be thought to demon-
strate a relentlessly pursued "artifice or stratagem" by O'Neill to
"catch" Sligh, shows no such overreaching. No threats were ever
made. Compare United States v. Skarie, 971 F.2d 317, 320 (9th Cir.
1992) (finding threats of impaling the defendant and harming her son

13

sufficient to constitute inducement). Requests to violate the law (even
if made) were not consistent and overwhelming. Compare United
States v. Joost, 92 F.3d 7, 13 (1st Cir. 1996) (finding evidence of
inducement where government created a dependent relationship
between agent and known felon and where governmental contacts
were repeatedly made over an extended period of time); United States
v. Groll, 992 F.2d 755, 759 (7th Cir. 1993) (finding inducement
where government agent called defendant every day for over a month
and then threatened her when she appeared to be backing out of drug
sale). Nor was Sligh "wined and dined" in a manner that could have
implanted any previously unheld criminal design in his mind.
Compare United States v. Fedroff, 874 F.2d 178, 184-85 (3d Cir.
1989) (finding inducement where government agents paid for defen-
dant's expensive meals and gambling trips in an effort to get him
accustomed to the lifestyle). No fraudulent misrepresentations were
put forth and there was never an attempt to play on the feelings or
personal weaknesses of Sligh. Compare United States v. Martinez,
122 F.3d 1161, 1164-65 (9th Cir. 1997) (finding inducement where
government agent repeatedly promised friendship and wealth); United
States v. Montanez, 105 F.3d 36, 39 (1st Cir. 1997) (reversing drug
distribution conviction because jury was not instructed on appeals to
sympathy as a basis for inducement). In short, my reading of the evi-
dence is that up to the very end of the obviously wary negotiations
being conducted with O'Neill, had Sligh not wanted all along to offer
O'Neill a bribe "all he had to do was say no and walk away." United
States v. Wilson, 129 F.3d 949, 951 (7th Cir. 1997). Consider the final
exchange leading up to the fatal offer. It opens with O'Neill's legiti-
mately closing off the several routes of a possible legal fix that had
been intimated over the course of the protracted conversations--
prolonged as much by Sligh as by O'Neill,

O'Neill: So, based on that particular route, there's nothing
I can do.

Sligh: Right. But you know, that something can be
done.

O'Neill: Uh huhn.

Sligh: Because that's what you do.

14

O'Neill: Yeah.

Sligh: And I'm sure you seen many different types of
case changes, where they were able to be han-
dled. So, if that's something that's possible, and
uh, only thing I need to know--

O'Neill: Okay--

Sligh: --is what I need to do to make that uh, transpire.

O'Neill: Okay. I guess I need to know from you, what
exactly are you asking me to do (Laughter).

Sligh: Uh, oh boy, oh boy, oh boy. Is it just you and
me?

O'Neill: Yeah, just you and me.

Sligh: You drove a car?

O'Neill: Yup. I have my own car, yup, they gave me a
license . . . .

Sligh: So, how much you owe on it?

O'Neill: Twenty-three hundred . . . .

Sligh: All right. So, uh, as a, as a, kind and giving per-
son, I can help you own it.

These are not the words of an overwhelmed wary innocent whose
will to obey the law has been overborne by the implanting of a crimi-
nal design not his own. A jury should not be permitted to speculate
on that possibility as the district court quite properly concluded.

In conclusion, I venture that the majority has been led astray from
the proper entrapment analysis by an undue absorption with and
apparent outrage at the objective nature of O'Neill's conduct--to the

15

point of suggesting that it amounted to the "crime of an overzealous
bureaucrat." Slip op. 12. The Supreme Court long ago in Sorrells spe-
cifically rejected, as decisive of the entrapment issue, the objective
purity or impurity of the Government's conduct. See Sorrells, 287
U.S. at 441. The specific motivation for O'Neill's conduct, whether
prompted by her attendance at a bribery seminar, or by innate zeal,
or vigor, or whatever, is irrelevant under federal-entrapment doctrine
as I understand it. Accordingly, I think that the district court, properly
recognizing this, rightly declined to allow in the proffered evidence
of O'Neill's attendance at the seminar.

I would affirm the conviction for this conceded violation of the
federal bribery statute.

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Referenced Cases