United States v. Davila

685 F. Supp. 243, 1988 U.S. Dist. LEXIS 5014, 1988 WL 57022
CourtDistrict Court, S.D. Florida
DecidedMay 27, 1988
DocketNo. 87-758-Cr
StatusPublished

This text of 685 F. Supp. 243 (United States v. Davila) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Davila, 685 F. Supp. 243, 1988 U.S. Dist. LEXIS 5014, 1988 WL 57022 (S.D. Fla. 1988).

Opinion

MEMORANDUM OPINION

SCOTT, District Judge.

Daniel Davila is charged in a two-count indictment with possession and transportation of a firearm by a convicted felon in violation of 18 U.S..App. § 1202(a)(1). This case was tried to the bench on March 14, 1988. The Government’s case was offered through the testimony of one witness, A.T.F.1 Agent Joe Benitez. Similarly, the Defendant’s case was presented through one witness, Defendant Daniel Davila. The evidence takes us into what can only be described as the Miami Beach subterranean culture of cocaine and guns.

I.BACKGROUND

Daniel Davila was convicted in 1985 in Florida state court for carrying a concealed firearm. After his discharge from state custody, Davila became heavily involved in the use of crack cocaine. In October, 1985, Davila met Henry, who also was a crack cocaine user. They developed an auspicious and natural relationship in which their principal pursuit was crack cocaine. Henry told Davila that his cousin needed a machine gun to defend himself from a threat (impliedly, the threat was a drug rip-off). Henry stressed the urgency of the need for the machine gun. In reality, Henry was a confidential informant for A.T.F. Agent Joe Benitez, who had instructed Henry to set up a contact between A.T.F. and Davila in order to consummate the purchase of automatic weapons.

The subsequent events were recorded through a series of tape-recorded conversations between A.T.F. and Davila. The Court has carefully reviewed each of these tapes, in light of the testimony of Agent Benitez and Defendant Davila.

At trial, Davila testified that to help Henry — and only for that purpose — he pursued the Miami Beach subculture in an effort to locate a machine gun. Through a friend, Miguelito, Davila was able to obtain a 9MM Browning. Davila, however, never obtained the machine gun requested by Henry. In the meantime, Agent Jorge Calderon had been introduced to Davila as Henry’s cousin. Following several phone conversations (which are Government Exhibits 1, 2 and 3) a meeting was finally set up between A.T.F. agents and Davila. On October 16, 1985, Agents Benitez and Carlos Montavelo met with Defendant Davila in order to purchase the machine gun on Washington Avenue, Miami Beach, Florida. This meeting took place in the automobile of the A.T.F. agents. It was recorded and introduced into evidence as Government Exhibit 5.

II.CONTENTIONS

As one might anticipate at this juncture, the defense in this case is entrapment. In order to support his defense of entrapment, Davila points to several pieces of evidence: Defendant argues that (a) he had no knowledge or background of weapons; (b) he attempted to obtain a machine gun only in order to accommodate a friend; (c) he was a cocaine addict during this period which mitigated against his predisposition to commit this crime; (d) he never produced the machine gun promised; and (e) subsequently he refused to participate in further dealings involving guns. In short, Davila contends that this was a one-time deal in which he provided the gun only for the purpose of protecting his friend’s family.

The Government response is rather simple: regardless of Defendant’s motivation, Davila agreed to provide a drug dealer with a machine gun; made various attempts through Miguelito to locate one; and while admittedly he never located an automatic weapon, he did provide a 9MM Browning to A.T.F. Agents for $150.00, having been previously convicted of a felony.

III.LEGAL DISCUSSION

Entrapment is an affirmative defense of limited application. Mathews v. United States, — U.S.-, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988); United States v. [245]*245Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). In order to raise the defense of entrapment, the defendant has the initial burden of coming forward with evidence of governmental involvement and inducement. United States v. Buckley, 586 F.2d 498 (5th Cir.1978); United States v. Groessel, 440 F.2d 602 (5th Cir.1971), cert. denied, 403 U.S. 933, 91 S.Ct. 2263, 29 L.Ed.2d 713 (1971). To satisfy the burden the defendant must adduce some evidence which tends to show a lack of predisposition to commit the offenses charged.2 Moreover, in determining whether the burden has been satisfied, the evidence must be viewed in a light most favorable to the defendant. If the defendant satisfies the burden, the government must then prove beyond a reasonable doubt that the defendant was predisposed to commit the crime. United States v. Alvarez, 755 F.2d 830 (11th Cir.1985).

There are currently two approaches to the defense of entrapment. Each involves a distinct test.3 The majority view is referred to as the “subjective test”; this rule was approved by a majority of the Supreme Court in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). This subjective approach has been consistently reaffirmed by the Supreme Court, and is thus the controlling law in this instance.

Following Supreme Court precedent, the Eleventh Circuit has adopted the subjective test by stating, “when entrapment is at issue, the focal point of the inquiry is on the predisposition of the defendant.” Alvarez, 755 F.2d at 856; United States v. Dean, 666 F.2d 174, 180 (5th Cir. Unit B 1982) (quoting United States v. Webster, 649 F.2d 346, 348 (5th Cir.1981) (en banc)), cert. denied, 456 U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303 (1983). Simply put, where a defendant is predisposed to commit a crime, he cannot be entrapped, regardless of how outrageous or overreaching the Government’s conduct may be. Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); Russell, 411 U.S. at 429, 93 S.Ct. at 1641; United States v. Rey, 811 F.2d 1453 (11th Cir.1987). If the defendant is ready and willing to commit crimes, such as are charged in the indictment, whenever the opportunity affords itself, the requisite predisposition is established. See, United States v. Alvarez, 755 F.2d at 856.

On the other hand, “when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the offense” the defense of entrapment will prevail. Sorrells, 287 U.S. at 442, 53 S.Ct. at 212-13; see also, Sherman, 356 U.S. at 372, 78 S.Ct. at 821; Hampton, 425 U.S. at 489, 96 S.Ct. at 1649-50; United States v. Anderton,

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Related

Sorrells v. United States
287 U.S. 435 (Supreme Court, 1932)
Sherman v. United States
356 U.S. 369 (Supreme Court, 1958)
United States v. Russell
411 U.S. 423 (Supreme Court, 1973)
Hampton v. United States
425 U.S. 484 (Supreme Court, 1976)
Mathews v. United States
485 U.S. 58 (Supreme Court, 1988)
United States v. Sherman
200 F.2d 880 (Second Circuit, 1952)
United States v. Richard Romano
278 F.2d 202 (Second Circuit, 1960)
United States v. Francis William Groessel
440 F.2d 602 (Fifth Circuit, 1971)
United States v. James Travis Buckley
586 F.2d 498 (Fifth Circuit, 1978)
United States v. David Post Anderton
629 F.2d 1044 (Fifth Circuit, 1980)
United States v. Albert Keith Webster
649 F.2d 346 (Fifth Circuit, 1981)
United States v. William Rey
811 F.2d 1453 (Eleventh Circuit, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
685 F. Supp. 243, 1988 U.S. Dist. LEXIS 5014, 1988 WL 57022, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-davila-flsd-1988.