United States v. Allan Humphrey, 670 F.2d 153, 11th Cir. (1982)
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Scribd Government DocsUnited States v. Allan Humphrey, 670 F.2d 153, 11th Cir. (1982)
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Scribd Government Docs670 F.
2d 153
UNITED STATES of America, Plaintiff-Appellee,
v.
Allan HUMPHREY, Defendant-Appellant.
No. 81-7475
Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
March 8, 1982.
Claude W. Hicks, Jr., Macon, Ga. (Court appointed), for defendantappellant.
W. Louis Sands, Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of
Georgia.
Before RONEY, KRAVITCH and CLARK, Circuit Judges.
KRAVITCH, Circuit Judge:
Appellant Allan Humphrey was convicted by a jury of six counts of theft and
interstate transportation of a 1980 Mercedes Benz automobile and two
counterfeited certificates of title in violation of 18 U.S.C. 2312, 2313, 2314,
and 2315. Humphrey contends that the trial judge erroneously refused to charge
the jury on the defense of entrapment. After reviewing the record we conclude
that appellant failed to present sufficient evidence of entrapment to warrant
submission of the defense to the jury; accordingly, we affirm.
I.
2
In response to complaints from the Georgia Bureau of Investigation and the
National Auto Theft Bureau in late 1980, FBI Special Agent Robert Wolfkill
began an undercover investigation of auto theft in central Georgia. Wolfkill
assumed the undercover identity of Bob Hardy, an insurance adjuster who dealt
in stolen merchandise. On January 21, 1981, Wolfkill had a telephone
conversation1 with appellant Allan Humphrey concerning Humphrey's ability
to provide Wolfkill with stolen automobiles, especially luxury models. In
subsequent conversations, appellant agreed to provide Wolfkill with one luxury
car and two certificates of title.
3
On January 29, 1981, appellant stole at gunpoint a 1980 Mercedes Benz from
its owner in Detroit, Michigan. Appellant drove the vehicle to the Holiday Inn
at the intersection of U.S. 80 and I-475 in Macon, Georgia, for a meeting with
Wolfkill. Wolfkill, with a tape recorder attached to his body and other agents
conducting surveillance, negotiated with appellant for the purchase of the
Mercedes and two counterfeit certificates of title for $2,000. After the sale was
completed, Wolfkill and appellant discussed future transactions and parted
company.2
Humphrey was arrested and charged in a six-count indictment with crimes
arising from the theft and transportation of the automobile and certificates of
title.3 At trial he admitted committing the acts alleged in the indictment but
claimed entrapment as a defense. Testifying in his own behalf as the sole
defense witness, appellant asserted that he had contacted Agent Wolfkill about
buying some guns prior to the taped conversation on January 21, but that
Wolfkill had been evasive about the guns and suggested he would be interested
in buying some stolen automobiles.4 Appellant stated that he knew nothing
about stealing automobiles, but did so because of the money offered by
Wolfkill. Despite this evidence the trial judge refused to instruct the jury on the
entrapment defense, and appellant was convicted.
II.
5
Entrapment is the government's inducement of the commission of a crime by
one not predisposed to commit it. United States v. Russell, 411 U.S. 423, 42829, 93 S.Ct. 1637, 1641, 36 L.Ed.2d 366 (1973); Sorrells v. United States, 287
U.S. 435, 442, 53 S.Ct. 210, 212, 77 L.Ed. 413 (1932); United States v.
Webster, 649 F.2d 346, 348 (5th Cir. 1981) (en banc); United States v. Hill, 626
F.2d 1301, 1303 (5th Cir. 1980).5 Entrapment is an affirmative defense which
requires the defendant to present some initial evidence before the issue is
properly raised. United States v. Tobias, 662 F.2d 381, 384 (5th Cir. 1981);
Hill, supra, at 1303. While the Fifth Circuit cases dealing with entrapment have
not been entirely consistent in defining the exact nature of the defendant's
burden of production, Hill, supra, at 1303 and n.3, the later precedents have
settled on a standard similar to that first enunciated in Pierce v. United States,
414 F.2d 163, 168 (5th Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 435, 24
L.Ed.2d 425 (1969):
6 there is any evidence in the record that, if believed by the jury, would show that
If
the government's conduct created a substantial risk that the offense would be
committed by a person other than one ready to commit it, then, as in all other cases,
involving questions of guilt or innocence, the jury must be permitted to resolve the
matter.
7
See United States v. Dean, 666 F.2d 174, 180 (5th Cir. 1982) (to raise
entrapment defendant must come forward with evidence "that the government's
conduct created a substantial risk that the offense would be committed by a
person other than one ready to commit it," quoting Tobias, supra, at 384);
United States v. Dickens, 524 F.2d 441, 444 (5th Cir. 1975), cert. denied, 425
U.S. 994, 96 S.Ct. 2208, 48 L.Ed.2d 819 (1976) (same standard); Webster,
supra, at 349 (same standard).6 Once the defendant carries this initial burden,
then the government must prove beyond a reasonable doubt that the defendant
was predisposed to commit the crime. Dean, supra, at 180; Tobias, supra, at
384; Webster, supra, at 349; Hill, supra, at 1304.
In determining whether appellant met his initial burden of production, we must
accept the testimony most favorable to him. Hill, supra, at 1304; United States
v. Wolffs, 594 F.2d 77, 80 (5th Cir. 1979). Appellant urges that under this
standard his testimony provided an adequate basis for submitting the
entrapment defense to the jury. Specifically, appellant contends that his
testimony showed he was interested only in purchasing guns from Agent
Wolfkill and would never had stolen automobiles absent the inducement of the
government. Appellant asserts that this was some evidence of a substantial risk
that the crime was committed by one not predisposed to commit it, and thus
entitled him to an entrapment instruction.
We disagree. In United States v. Hill, 626 F.2d 1301 (5th Cir. 1980), an
undercover narcotics agent had arranged contact with the defendant and
suggested a transaction involving stolen automobiles. Despite the fact that the
agent had first contacted appellant and suggested the illegal scheme, the court
held that the evidence was insufficient to submit the entrapment issue to the
jury. The court stated that entrapment "represents more than mere suggestion,
solicitation, or initiation of contact and, in fact, embodies an element of mild
persuasion or coercion" which the court found was absent. Id. at 1304.
10
We find that Hill controls this case. Even accepting as true appellant's
assertions that his initial contact with Agent Wolfkill was solely for the purpose
of purchasing guns and that it was Wolfkill who proposed appellant steal
automobiles, the evidence failed to demonstrate that "mild persuasion or
coercion" the Hill court identified as necessary to raising entrapment. In short,
we conclude that the defendant failed to provide any evidence that "the
government's conduct created a substantial risk that the offense would be
committed by a person other than the one ready to commit it."
11
AFFIRMED.
This and subsequent phone conversations were taped by Wolfkill
Humphrey in fact brought a Cadillac Eldorado to Wolfkill approximately one
month after the transaction involving the Mercedes
Appellant was charged with interstate transportation of a stolen motor vehicle
(count one), disposing of a stolen motor vehicle transported across state lines
(count two), disposing of a counterfeited security (counts three and five) and
transporting a counterfeit security in interstate commerce (counts four and six)
This testimony was disputed by Wolfkill, who testified that his first contact
with Humphrey occurred on January 21, 1981, the date of the first taperecorded call between Humphrey and Wolfkill
The Eleventh Circuit, in the en banc case Bonner v. City of Prichard, 661 F.2d
1206 (11th Cir. 1981), adopted as precedent the decisions of the former Fifth
Circuit
As the court in Hill noted, other Fifth Circuit cases have phrased the test
somewhat differently. Compare, e.g., United States v. Wolffs, 594 F.2d 77, 80
(5th Cir. 1979) ("defendant must adduce some evidence, more than a scintilla,
which tends to show government inducement and lack of predisposition") with
United States v. Timberlake, 559 F.2d 1375, 1379 (5th Cir. 1977) (must submit
entrapment theory "for which there is any foundation in the evidence") and with
United States v. Gomez-Rojas, 507 F.2d 1213, 1218 (5th Cir.), cert. denied,
423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975) (defendant must present "a
prima facie case of entrapment indicating that Government created a
'substantial risk that the offense would be committed by a person other than one
ready to commit it.' "). We agree with the Hill court, however, that the
differences in language have not produced divergent results, and because our
most recent cases have settled on the "substantial risk" formulation of Pierce,
we adopt that formulation in this case
