United States v. O'Donnell

22 M.J. 911, 1986 CMR LEXIS 2233
CourtU S Air Force Court of Military Review
DecidedAugust 22, 1986
DocketACM 25201
StatusPublished
Cited by4 cases

This text of 22 M.J. 911 (United States v. O'Donnell) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. O'Donnell, 22 M.J. 911, 1986 CMR LEXIS 2233 (usafctmilrev 1986).

Opinions

DECISION

LEWIS, Judge:

Despite his pleas the appellant was found guilty by members of conspiracy to steal military property, multiple larcenies and wrongful dispositions of military property. His sole defense at trial was that he was [912]*912entrapped by the enticements of Airman First Class D, a government source who had volunteered his services to investigators in identifying those involved in thefts and misappropriations of military property at Offutt Air Force Base. He now complains that he was prejudiced by an erroneous instruction to the members that the defense of entrapment is negated by proof of a profit motive. The Government concedes that the challenged instruction was incorrect, but argues that the appellant was not prejudiced. We agree that the challenged instruction was erroneous. In this case we find the error prejudicial, and we reverse.

The portion of the entrapment instruction of which the appellant complains reads:

With respect to entrapment, you are further advised as follows: If an accused enters into an unlawful transaction for profit, he has not been entrapped, for the profit motive, not inducement on the part of agents of the government provides the incentive for commission of the offense. There is an exception to this rule and that is as follows: In the event you do find the offenses were motivated by profit, the defense of entrapment is still available if you also find that the conduct of the government agents in inducing the offenses was so outrageous as to violate fundamental fairness and be shocking to the universal sense of justice.
To summarize, if the accused was an innocent person and was induced by government agents to commit crimes that otherwise would not have occurred, then he was entrapped and you must acquit him unless you find that he entered the unlawful conduct for profit, in which case the defense of entrapment is negated. Even then, however, the defense of entrapment is still available if you find the conduct of the government agents was so outrageous as to violate fundamental fairness and be shocking to the universal sense of justice.

It was error to submit the question of fundamental fairness of conduct by the government agent to the members, although the appellant was not prejudiced thereby. This is a due process issue to be determined by the military judge, when appropriate, as a matter of law. United States v. Vanzandt, 14 M.J. 332 (C.M.A.1982), at 343, n. 11, citing United States v. Gonzales, 539 F.2d 1238 (9th Cir.1976). Therefore, the only parts of the instruction which concern us are those relating to the effect of profit motive. The language used was based on United States v. Beltran, 17 M.J. 617 (N.M.C.M.R.1983), pet. denied, 18 M.J. 440 (1984), in which the Navy-Marine Corps Court of Military Review adopted a rule that an accused’s profit motive defeats his claim of entrapment. In Beltran, the Court upheld an instruction by the military judge given in the following terms: “I advise you that the profit motive will destroy an entrapment defense.” The Court’s rationale was stated as follows:

If, however, an accused enters into an unlawful transaction for the purpose of realizing a profit, he has not been entrapped, for the profit motive, not inducements on the part of agents of the Government, provided the incentive for the commission of the offense.

United States v. Beltran, supra, at 620. Beltran, in turn, placed heavy reliance on United States v. Hebert, 1 M.J. 84 (C.M.A.1975). Therein, the Court of Military Appeals, in examining the providency of a guilty plea when the appellant had admitted that he anticipated a profit from the distribution of marijuana, observed: “Such a profit motive foreclosed the defense of entrapment....” United States v. Hebert, supra at 86.

As the Government notes in its brief, the Army Court of Military Review has subsequently addressed this issue and has rejected the view that the existence of a profit motive ipso facto precludes the defense of entrapment. United States v. Meyers, 21 M.J. 1007 (A.C.M.R.1986). Meyers had not been decided when this case was tried and, thus, was not available for review by the military judge. The court in Meyers reached two conclusions with which we are [913]*913in agreement. First, the Court of Military Appeals in Hebert did not intend to establish a bright-line profit motive rule.1 Hebert merely stressed a persuasive factor weighing against a claim of entrapment in the context of reviewing a providency issue. United States v. Meyers, supra, at 1012-1013. The Army court emphasized that United States v. Vanzandt, supra, in providing a virtual restatement of the law of entrapment, not only failed to enunciate a profit motive rule, but cited Hebert as standing for a more limited proposition that the possibility of entrapment is precluded when an accused immediately agrees to a sale of drugs and accepts money therefor without hesitation. United States v. Meyers, supra, at 1013, n. 7, citing United States v. Vanzandt, supra, at 343. We also concur with a second conclusion reached by the Army court that the presence or absence of a profit motive is one of several factors to be considered in determining an accused’s predisposition to engage in criminal activity. United States v. Meyers, supra, at 1014. This is in accord with federal decisions treating profit motive as a key factor, but only one factor, to be weighed along with others relating to the issue of predisposition. United States v. So, 755 F.2d 1350 (9th Cir.1985); United States v. McLernon, et al., 746 F.2d 1098 (6th Cir.1984); United States v. Reynoso-Ulloa, 548 F.2d 1329 (9th Cir.1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2820, 56 L.Ed.2d 769 (1978); United States v. Watson, 489 F.2d 504 (3d Cir.1973); Eisenhardt v. United States, 406 F.2d 449 (5th Cir.1969); Lathem v. United States, 259 F.2d 393 (5th Cir.1958).

Even if we were to accept the view that profit motive should be singled out as a factor meriting special consideration by fact finders, the instruction in this case goes too far. It effectively advises that one who “enters into an unlawful transaction for profit” cannot avail himself of the entrapment defense. Such a sweeping rule of law virtually eliminates the defense of entrapment in all cases involving dispositions of stolen property, sales of contraband, and other alleged criminal transactions entered into in expectation of monetary gain. It is beyond our comprehension that United States v. Hebert, supra, as viewed in the

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Bluebook (online)
22 M.J. 911, 1986 CMR LEXIS 2233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-odonnell-usafctmilrev-1986.