United States v. Wright

Court Case Details
Court Case Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4538


UNITED STATES OF AMERICA,

Plaintiff

Appellee,


v.

JAMES WRIGHT,

Defendant

Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:05-cr-00078-RDB)


Argued: March 27, 2009

Decided: April 28, 2009


Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED:

Danielle Tarin, WHITE & CASE, Washington, D.C., for

Appellant. James Thomas Wallner, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Jonathan
M. Mastrangelo, WHITE & CASE, Washington, D.C., for Appellant.
Rod J. Rosenstein, United States Attorney, Baltimore, Maryland,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

This case arises out of defendant’s participation in a

controlled drug buy. A jury found defendant guilty of one count

of conspiracy to distribute and possess with intent to

distribute 50 grams or more of cocaine base, 21 U.S.C. § 846, 21

U.S.C. § 841(a)(1) and (b)(1)(A); and one count of possession

with intent to distribute 50 grams or more of cocaine base, 21

U.S.C. § 841(a)(1) and (b)(1)(A), and aiding and abetting the

same, 18 U.S.C. § 2. Defendant appeals his conviction on

multiple grounds. We affirm the judgment.

I.

A.

On September 14, 2004, a group of law enforcement officers

met with Jeffrey Saffell, a confidential informant they had used

previously, and directed him to call defendant James Wright to

arrange a purchase of cocaine base. Saffell had known defendant

for two years and had obtained drugs from him in the past. Just

as he had done before, Saffell called defendant at home to set

up the buy. In less than five minutes, Saffell arranged to

purchase drugs from defendant and agreed on a time that he would

pick up defendant. The officers monitored and recorded this

phone call, but one of the officers subsequently lost the tape

recording. The officer testified that he lost the tape while

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moving when he was transferred back to headquarters the day

after the incident. There is no allegation that any bad faith

was involved.

Next, as is customary with a controlled buy, one of the

officers searched Saffell to ensure that he was not in

possession of any contraband, money, or drug paraphernalia. The

officers then gave Saffell $2,000 to purchase the drugs, a scale

to weigh the drugs, and a vehicle to use for the operation.

Saffell was wired with a radio transmitter and the vehicle was

equipped with a video recorder and radio transmitter.

Driving the government vehicle, Saffell then picked

defendant up at home, just as he had done during their prior

drug transactions. Almost immediately upon entering the car,

defendant asked Saffell “What’s up? What you trying to do?”

Saffell responded in slang that he was trying to get two ounces

of crack cocaine. Without any hesitation or delay, defendant

borrowed Saffell’s phone to call one of his drug suppliers --

one of his “sources” or “connects.” The source agreed to

provide the drugs, but said that it would take fifteen minutes.

This source took too long, so defendant called another one

of his sources. They arranged to meet, but the transaction was

further delayed because there were too many police officers in

the neighborhood where they had chosen to meet. While defendant

and Saffell were waiting for defendant’s sources, they drove

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around Baltimore to “burn time” and had an extensive, almost two

hour conversation about drug dealing, women, and other aspects

of their lives. They also made two stops: one at a convenience

store to buy cigarettes and one at a truck driving business so

that defendant could pick up a job application. Except for the

two stops, the entire conversation between defendant and Saffell

was recorded by the video camera in the car.

Ultimately, defendant was successful in setting up the drug

buy with Dante Couther, someone whom Saffell recognized from a

previous drug transaction arranged by defendant. Saffell

testified that they picked Couther up in the car and gave him

the $2,000; they then drove Couther to another location where he

obtained the cocaine; and finally, Couther gave the cocaine to

defendant who quickly examined it and then handed it over to

Saffell. The transaction was complete.

Saffell dropped off defendant and Couther, and then met up

with the police officers who had been monitoring the operation.

He gave the officers the two ounces (approximately 55 grams) of

cocaine that he had purchased through defendant. The police

immediately arrested defendant and Couther.

B.

A grand jury indicted defendant and Couther on one count of

conspiracy to distribute and possess with intent to distribute

50 grams or more of cocaine base, 21 U.S.C. § 846, 21 U.S.C. §

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841(a)(1) and (b)(1)(A); and one count of possession with intent

to distribute 50 grams or more of cocaine base, 21 U.S.C. §

841(a)(1) and (b)(1)(A), and aiding and abetting the same, 18

U.S.C. § 2. Defendant was tried before a jury beginning on

September 12, 2005. The government’s case-in-chief included

testimony from Saffell and the officers who arranged and

monitored the controlled buy. During Saffell’s testimony, the

government played portions of the videotape of the car ride.

The government also provided the jury with a transcript of the

video to use as an aid, but the transcript was not entered into

evidence.

During cross-examination, defendant’s counsel elicited

testimony from various witnesses to undermine Saffell’s

credibility, including that he breached the plea agreement he

was cooperating under by participating in unauthorized drug

transactions. Defendant’s counsel also pointed out that the

officers committed several minor errors in executing and

documenting this operation that deviated from police practice.

At the close of the government’s case-in-chief defendant

made a motion for judgment of acquittal on three grounds: (1)

the denial of due process premised on the government’s

mishandling of various evidence, including the loss of the tape

of Saffell’s initial conversation with defendant and alleged

inconsistencies in testimony; (2) the defense of entrapment; and

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(3) the sufficiency of the evidence. The court denied

defendant’s motion. Of relevance to this appeal, the court

rejected defendant’s entrapment claim because he had not met his

initial burden of presenting evidence that the government

induced him to commit the crime. In addition, the court ruled

that because defendant did not request a jury instruction on

entrapment, he could not argue entrapment to the jury.

Defendant also moved that the jury be instructed that it

could draw an inference that the lost tape was adverse to the

government’s case. Exercising its discretion, the court denied

the instruction because, as defendant conceded, there was no

evidence that the government had acted in bad faith when it lost

the tape. Defendant did not testify and did not present any

additional evidence.

The jury convicted defendant of both counts on September

15, 2005. He was later sentenced to 240 months of imprisonment.

Defendant appeals his conviction.

II.

All of defendant’s arguments relate in some way to the

defense of entrapment. Entrapment is an affirmative defense

that consists of “two related elements: government inducement of

the crime, and a lack of predisposition on the part of the

defendant to engage in the criminal conduct.” Mathews v. United

6

States, 485 U.S. 58, 62-63 (1988); see also United States v.

Hsu, 364 F.3d 192, 198 (4th Cir. 2004) (citing Mathews, 485 U.S.

at 62-63). Here, defendant did not meet his initial burden of

producing “more than a scintilla of evidence” that the

*

government induced him to commit the crime.

See Hsu, 364 F.3d

at 200 (internal quotation marks omitted); see also United

States v. Sligh, 142 F.3d 761, 762 (4th Cir. 1998).

Inducement “is a term of art: it involves elements of

governmental overreaching and conduct sufficiently excessive to

implant a criminal design in the mind of an otherwise innocent

party.” United States v. Daniel, 3 F.3d 775, 778 (4th Cir.

1993); see also Hsu, 364 F.3d at 198 (quoting Daniel, 3 F.3d at

778). It requires “excessive behavior” by the government that

is “so inducive to a reasonably firm person as likely to

displace mens rea.” United States v. DeVore, 423 F.2d 1069,

1072 (4th Cir. 1970); see also United States v. Osborne, 935

F.2d 32, 38 (4th Cir. 1991) (quoting DeVore, 423 F.2d at 1072).

To support his claim of inducement, defendant first points

to the fact that the government initiated the drug transaction

and solicited him to broker the drug deal. It is well

established that this evidence is not sufficient because

*

Defendant’s claim that he was entitled to present an

entrapment defense to the jury also fails because defendant did
not request a jury instruction on entrapment.

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inducement “requires more than mere solicitation by the

government.” Hsu, 364 F.3d at 198; see also United States v.

Ramos, 462 F.3d 329, 334 (4th Cir. 2006); United States v.

Velasquez, 802 F.2d 104, 106 (4th Cir. 1986).

Next, defendant points to the statements Saffell made

during the car ride. Specifically, defendant alleges that

Saffell offered him money and sex with women to broker the deal,

played on defendant’s sympathy by stating that he needed money

for his daughter’s mother, invoked his love for defendant,

coached defendant on how to complete the transaction, and

assured defendant that no one had ever been caught with him.

Some forms of “persuasion or appeals to sympathy” can constitute

inducement, United States v. Squillacote, 221 F.3d 542, 569 (4th

Cir. 2000), but Saffell’s statements do not come close to the

types of pleading and persuasion that courts have held

constitute inducement.

In fact, Saffell’s statements do not involve pleading or

persuasion at all. They were not offered in response to any

reluctance by defendant to participate in the buy. The

statements all occurred after defendant had begun participating

in the transaction by calling one of his sources to supply the

drugs. And defendant did not later show any reluctance to

participate when he and Saffell were waiting for his sources to

come through. Defendant notes that he stated “once I get this

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money together it’s game over,” and that he picked up a job

application while they were waiting, but these facts show at

most that defendant was going to seek legitimate employment

after completing this deal, which was already underway.

Similarly, defendant claims that Saffell offered him money

to complete the deal, but payment for arranging a deal is normal

in the context of a drug buy and is not generally sufficient to

demonstrate inducement. See, e.g., United States v. Diaz-Diaz,

433 F.3d 128, 136 (1st Cir. 2005); United States v. Glover, 153

F.3d 749, 754 (D.C. Cir. 1998). This case is thus a far cry

from a situation where the government had to make multiple

requests “to overcome, first, petitioner’s refusal, then his

evasiveness, and then his hesitancy in order to achieve

capitulation.” Sherman v. United States, 356 U.S. 369, 373

(1958). See also Sligh, 142 F.3d at 763 (finding evidence of

inducement where the defendant “repeatedly ignored the agent’s

invitations to wrongdoing,” but “the agent nevertheless

persisted in her baiting of [the defendant]”).

Indeed, courts have found inducement only where the pleas

were extreme: where an undercover agent pleaded that “unless his

‘blood brother’ would help him land a cocaine deal he would be

killed,” United States v. McLernon, 746 F.2d 1098, 1113 (6th

Cir. 1984); where a government informant was in a narcotics

addiction treatment program and preyed on the defendant’s

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sympathy by repeatedly requesting narcotics because he was

suffering from withdrawal, Sherman, 356 U.S. at 373; and where

an undercover informant convinced the defendant to cooperate

based on “a tale of financial woes, the need to support a new

spouse, and terminal cancer, all the while knowing that

[defendant’s] sister recently had died of cancer,” United States

v. Nations, 764 F.2d 1073, 1080 (5th Cir. 1985). Saffell’s

statements simply do not rise to this level.

In short, none of the statements to which defendant alludes

would “persuade an otherwise innocent person to commit a crime.”

Ramos, 462 F.3d at 334 (quoting Hsu, 364 F.3d at 200). At best,

the statements amount to the sort of “mild persuasion” that we

have repeatedly held does not constitute inducement. See Hsu,

364 F.3d at 202 (holding that “passing mention” of “rewards” was

“mere banter” that at most amounted to mild persuasion); Daniel,

3 F.3d at 778-79 (holding that the government’s reminder “that

there was money to be made and promise to avoid arousing the

attention of the authorities” amounted to only mild persuasion);

see also Squillacote, 221 F.3d at 569 (recognizing that mild

persuasion is not inducement). The district court was right to

observe that this case was “no more than any routine controlled

buy,” and that “if the evidence in this case is sufficient to

carry the burden of showing government inducement,” courts would

be “hard pressed” to find a case that does not meet the burden.

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III.

Defendant’s next arguments also relate to his entrapment

defense, but they are premised directly on the claim that the

district court should have imposed spoliation sanctions on the

government for losing the tape of Saffell’s initial phone call

to defendant. First, defendant argues that the lost tape was

central to his entrapment defense and therefore the district

court should have sanctioned the government by granting his

motion for judgment of acquittal.

This argument too must fail. To begin with, the evidence

did not have “an exculpatory value that was apparent before the

evidence was [lost].” California v. Trombetta, 467 U.S. 479,

489 (1984). To the contrary, Saffell’s and the officer’s

testimony about the initial call -- that it was a controlled

call where Saffell arranged to purchase drugs from defendant --

shows that, in all likelihood, the tape would have further

inculpated defendant. Moreover, under Arizona v. Youngblood,

488 U.S. 51 (1988), “unless a criminal defendant can show bad

faith on the part of the police, failure to preserve potentially

useful evidence does not constitute a denial of due process of

law.” Id. at 58. Here, as defendant conceded, there was no

evidence that the government acted in bad faith.

Because defendant cannot meet the standard required for

reversal under Trombetta and Youngblood, he tries to import the

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civil standard for sanctions for spoliation of evidence. We

doubt this standard controls in the criminal context, but even

if it did, the severe sanction of an outright acquittal would

not be warranted. In view of the absence of any bad faith on

the part of the government and in light of the fact that the

exculpatory value of the evidence was anything but apparent, the

district court cannot be said to have abused its broad

discretion by failing to grant the significant sanction

defendant seeks. Defendant’s trial counsel recognized as much

when he stated: “where the issue has arisen in federal criminal

cases principally it is whether the Indictment should be thrown

out . . . . You have to establish bad faith for that and

obviously nobody is arguing that.” JA 423.

Finally, defendant argues that the district court should

have at least sanctioned the government by granting his motion

for an adverse inference instruction. The district court

denied defendant’s motion because there was no evidence that the

government acted in

bad faith.

This was not an abuse of

discretion because without bad faith there was simply no basis

for an inference that the tape was adverse to the government.

Indeed, the very case upon which defendant explicitly based his

proposed instruction requires “bad faith conduct” before an

adverse inference instruction can be given. United States v.

Wise, 221 F.3d 140, 156 (5th Cir. 2000).

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IV.

For the foregoing reasons, the judgment of the district

court is affirmed.

AFFIRMED

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