United States v. Duane A. Berry

661 F.2d 618

• Court: Court of Appeals for the Seventh Circuit
• Decided: June 4, 1981
• Docket: 79-2213
• Status: Published

Opinions

BONSAL, Senior District Judge.

Defendant-Appellant Duane A. Berry appeals from his conviction by a jury in the United States District Court for the Northern District of Illinois, Eastern Division, of possession of stolen checks in violation of 18 U.S.C. § 1708 (Count One) and the unlawful sale and disposition of United States Treasury checks in violation of 18 U.S.C. § 641 (Count Two).

On October 1, 1979, defendant was sentenced to two years’ imprisonment on Count One. Imposition of sentence was suspended on Count Two and defendant was placed on probation for three years to follow his release from imprisonment. On October 29, the sentence of Count One was reduced to 18 months and the probation on Count Two increased to 3V2 years.

On May 1, 1979, Postal Inspector Robert F. Hartman, acting in an undercover capacity, met with defendant and his co-defendant, Leonard Hamilton, who subsequently pled guilty, to discuss the purchase of stolen United States Treasury checks. Defendant offered for sale United States Treasury checks having a face value of approximately $346,000, for which Hartman made an initial payment to the defendant of $2,600. The transaction was observed by a surveillance team, and defendant and Hamilton were arrested.

Defendant contends that he did not have effective assistance of counsel at his trial and that his defense of entrapment was not rebutted by any evidence that he had a predisposition to commit the offenses.

Defendant points out that when he took the stand at his trial, his counsel asked him about two minor marijuana convictions which were more than ten years old and which had been later determined to be constitutionally invalid. In People v. McCabe, 49 Ill.2d 388, 275 N.E.2d 407 (1971), the Supreme Court of Illinois held that the inclusion of the sale of marijuana in the Narcotic Drug Act, which provided a mandatory first offender sentence of ten years, was unconstitutional, since marijuana, being less dangerous than the other drugs listed in the Narcotic Drug Act, should more appropriately have been included in the Drug Abuse Control Act. In People v. Meyerowitz, 61 Ill.2d 200, 335 N.E.2d 1 (1975), in which the defendants had pled guilty to charges of illegal possession of marijuana, the Illinois Supreme Court gave McCabe retroactive application. Therefore, the infirmity of defendant’s prior convictions was not that he did not possess the marijuana, but that the sale and possession of marijuana had been arbitrarily included in the Narcotic Drug Act instead of the Drug Abuse Control Act. In Illinois, possession of marijuana is conduct subject to punishment.

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[L2] We note that defendant raised an entrapment defense at trial and therefore cannot object “to an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue.” Sorrells v. United States, 287 U.S. 435, 451, 53 S.Ct. 210, 216, 77 L.Ed. 413 (1932). To refute specific false assertions, the Government might have attempted to impeach defendant with evidence of prior felony convictions, despite their unconstitutionality, see Loper v. Beto, 405 U.S. 473, 482 n. 11, 92 S.Ct. 1014, 1018 n. 11, 31 L.Ed.2d 374 (1972). Aside from the conviction, the Government may well have attempted to show that at the time of the marijuana possession the defendant had engaged in conduct which was in violation of the criminal law at the time. Therefore, trial counsel may have elicited this evidence to lessen the impact. If error, it was certainly harmless error. Plies v. United States, 431 F.2d 727 (9th Cir. 1970); Shorter v. United States, 412 F.2d 428 (9th Cir. 1969). Indeed, in United States v. Perry, 478 F.2d 1276, 1279 (7th Cir. 1973), this court approved of broad inquiry into a defendant’s reputation to refute an entrapment defense and rejected the argument that evidence to show predisposition should be limited to a showing of prior convictions. See also Sherman v. United States, 356 U.S. 369, 375, 78 S.Ct. 819, 822, 2 L.Ed.2d 848 (1958).

As defendant had received no prison sentence and relatively short terms of probation on his prior convictions, the jury could not have been impressed with his prior criminal record. Indeed, the jury could have thought that possession of marijuana (as distinguished from sale) indicated that defendant was a user, which would have made him an easier mark for entrapment by the Government, which is what defendant wanted the jury to believe. While Rule 609(b), Federal Rules of Evidence, precluded the Government from introducing defendant’s prior convictions without first obtaining a determination by the court that the probative value of the convictions outweighed their prejudice to the defendant, this did not preclude defendant’s counsel from introducing them if he believed defendant’s interest would be served thereby.

Considering the strong case presented by the Government, it does not appear that the evidence of these prior convictions prejudiced the defendant. Indeed, defendant concedes that defense counsel often uses this trial tactic to preclude the Government from first bringing out a defendant’s prior criminal record. Taking trial counsel’s performance as a whole, it does not appear that it fell short of the “minimum professional standard” required. United States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (7th Cir. 1975); United States v. Fleming, 594 F.2d 598, 607 (7th Cir. 1979).

With respect to defendant’s defense of entrapment, the testimony as to the meeting at which the Government checks were sold to the Postal Inspector could have satisfied the jury beyond a reasonable doubt that defendant was predisposed to commit the crimes. See United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sorrells v. United States, supra; United States v. Viviano, 437 F.2d 295 (2d Cir. 1971). Accepting defendant’s contention that he was repeatedly importuned by the Government does not change our view. United States v. Carreon, 578 F.2d 176 (7th Cir. 1980); United States v. Guevara, 598 F.2d 1094 (7th Cir. 1978).

We find no merit to defendant’s challenge to his sentence as it was reduced. It was within the judge’s province to consider the prior convictions and to reduce the sentence when he was informed that the prior convictions were invalid. United States v. Santiago, 582 F.2d 1128, 1137 (7th Cir. 1978); United States v. Washington, 586 F.2d 1147 (7th Cir. 1978). The reduction, of the prison term and the corresponding increase in the probation term did not constitute double jeopardy and was within the discretion of the trial judge. United States v. Markus, 603 F.2d 409, 414 (2d Cir. 1979); United States v. Mathis, 579 F.2d 415 (7th Cir. 1978).

Defendant-appellant’s conviction is affirmed.

In 1970 defendant was convicted of possession of a hypodermic needle.