United States v. Reed

• Court: Court of Appeals for the First Circuit
• Decided: October 14, 1992
• Docket: 91-2309
• Status: Published

Opinion

USCA1 Opinion

October 14, 1992
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________

          No. 91-2309

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                   DANIEL L. REED,

                                Defendant, Appellant.

                                 ___________________

                                     ERRATA SHEET

               The  opinion of  this Court  issued on  October 5,  1992, is
          amended as follows:

               On cover sheet, the  judge below should be listed  as "[Hon.
          D.  Brock Hornby, U.S.  District Judge]"  instead of  "[Hon. Gene
                            ____________________
          Carter, U.S. District Judge]".
                  ___________________

October 5, 1992          ____________________

        No. 91-2309

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                   DANIEL L. REED,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. D. Brock Hornby, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________

                           Campbell, Senior Circuit Judge,
                                     ____________________

                              and Boudin, Circuit Judge.
                                          _____________

                                 ____________________

            Roderick B. O'Connor, by Appointment of the Court, for appellant.
            ____________________
            Margaret  D. McGaughey,  Assistant  United  States Attorney,  with
            ______________________
        whom Richard S. Cohen,  United States Attorney, and Jay  P. McCloskey,
             ________________                               _________________
        Assistant United States Attorney, were on brief for the United States.

____________________

____________________

CAMPBELL,  Senior  Circuit Judge.   Daniel  L. Reed
                                 _____________________

            appeals from a  judgment of conviction entered in  the United

            States District Court  for the  District of Maine.   After  a

            jury trial, Reed  was convicted  on August 21,  1991, of  two

            counts  of knowingly  and intentionally  distributing cocaine

            within 1,000 feet  of a school in  violation of 21 U.S.C.    

            841(a)(1) and 860.  

                      Reed  was shown  to have  participated in  two drug

            transactions at  a motel in Damariscotta,  Maine, in February

            1991.   On both occasions,  Reed was invited  to the motel by

            his acquaintance  Darryl Witham  to meet a  potential cocaine

            purchaser.  Unbeknownst to Reed,  Mr. Witham was a government

            informant and the  purported buyer was  actually an agent  of

            the  Maine  Bureau  of  Intergovernmental   Drug  Enforcement

            (BIDE).  On  both occasions  Reed arrived at  the motel  with

            packages containing  cocaine,  transferred them  to the  BIDE

            agent,  and accepted cash in  return.  At  trial, Reed raised

            the   defense  of   entrapment.     He  conceded   to  having

            participated in the cocaine transactions, but argued that the

            government, through  Witham, induced  him to  participate and

            that he sold the drugs only as an agent of Witham.

                      Appellant raises three issues on appeal.  First, he

            argues  that  it was  error for  the  district court  to have

            allowed it  to be brought out at trial that he had previously

            been convicted for  the possession of cocaine.  The substance

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of his contention is  that a prior conviction  for possession

            is not relevant to a defendant's predisposition to distribute

            cocaine, and  is mere  character evidence  barred by  Fed. R.

            Evid. 404(b).1

                      We need  not reach  the merits of  this contention,

            however, because appellant failed to make timely objection to

            the  admission of  this  evidence.   Indeed, Reed's  pretrial

            motion in limine effectively waived objection to  the fact of
                   __ ______

            his prior conviction for cocaine possession.  In that motion,

            Reed  moved  "to  limit   any  inquiry  regarding  his  prior

            convictions to the  fact that he was convicted  of possession

            of cocaine in 1990 and to exclude any details beyond the mere

            fact of that conviction and the date of the offense charged."

            Defendant's  Motion  In Limine  to  Limit  Evidence of  Prior

            Convictions  at 1.  At the  pretrial hearing, defense counsel

            merely argued  that  admitting the  details surrounding  that

            conviction would  raise "the danger  of litigating collateral

            issues;"  counsel also argued that "we have to apply Rule 403

____________________

            1.  Fed. R. Evid. 404(b) provided:
             
                      Evidence of other crimes, wrongs, or acts
                      is not admissible  to prove the character
                      of a  person in  order to show  action in
                      conformity therewith.   It may,  however,
                      be admissible for other purposes, such as
                      proof  of  motive,  opportunity,  intent,
                      preparation,  plan,  knowledge, identity,
                      or absence of mistake or accident.

            (Effective prior to Dec. 1, 1991).

                                         -4-

[not 404(b)] to the  evidence here and look at  the probative

            value versus  the potential prejudice here  in litigating the

            underlying issues."  Transcript of  Hearing on Motions at 11-

            12.2     The   district  court  denied   defendant's  motion,

            reasoning that "where entrapment is  raised as an issue, that

            the  inquiry [into the details  of a prior  conviction] is no

            longer  collateral but rather a  direct matter of concern for

            the  fact finder."  Transcript  of Hearing on  Motions at 22.

            Because defendant's  predisposition  is at  issue, the  judge

            continued, "it really is the underlying conduct, perhaps more

            than the  conviction itself,  which becomes a  material issue

            concerning  the  previous  offense rather  than  collateral."

            Transcript of Hearing on Motions at 23.

                      The  police officer thereafter  testified at trial,

            without objection, to having  arrested Reed on the possession

            charge  and to  the  details mentioned  in  note 2.    Reed's

            girlfriend,  a defense  witness, testified  without objection

            that  Reed  refused Witham's  invitations  to  deal in  drugs

            because  Reed   was  on  probation  for  cocaine  possession.

            Finally,  Reed   himself  testified  on  direct   and  cross-

____________________

            2.  The government responded that it only intended to present
            testimony as to "the fact that he was arrested, stopped while
            driving  a vehicle in Kittery,  Maine; that he  and two other
            people were in the  vehicle; and that approximately an  ounce
            of cocaine  was found in  the front  seat; [that] he  was the
            driver of the  vehicle; and  that he subsequently  pled to  a
            charge of possession of cocaine."  At trial, the government's
            evidence about  the conviction, elicited  through the  police
            officer's testimony, was in fact limited to these matters.

                                         -5-

examination about the circumstances of his arrest, conviction

            and subsequent  probation for possession of  cocaine in 1990,

            contending that his being on  probation for this offense made

            him particularly reluctant to deal in drugs in 1991, the time

            of the present offenses. 

                      Reed's willingness, stated in the motion in limine,
                                                               __ ______

            to allow evidence  of the fact of his  conviction in 1990 for

            cocaine possession is fatal to his present  argument that all

            evidence of  that conviction should have  been excluded under

            Rule  404(b).  See United States v. Vest, 842 F.2d 1319, 1325
                           ___ _____________    ____

            (1st  Cir.), cert. denied, 488  U.S. 965 (1988).   Neither in
                         ____________

            the motion in limine nor later did he make  any such argument
                       __ ______

            below.  See Fed. R. Evid. 103(a).  In the motion in limine he
                    ___                                      __ ______

            only requested exclusion of the details surrounding the prior
                                            _______

            offense, and  was silent even  as to  this limited  objection

            when those details were later elicited.  Indeed, not only did

            the motion in limine effectively waive objection  to the fact
                       __ ______

            of  conviction, but we doubt the motion in limine sufficed by
                                                    __ ______

            itself to preserve the  question of the admissibility  of the

            details for appeal.   A motion in limine  without subsequent,
                                           __ ______

            contemporaneous  objection at  trial,  or  other factors  not

            present  here,  is  ordinarily  insufficient to  preserve  an

            evidentiary ruling  for appeal.   See  Fed. R.  Evid. 103(a);
                                              ___

            Vest,  842 F.2d at 1325;  United States v.  Griffin, 818 F.2d
            ____                      _____________     _______

            97,  105  (1st Cir.),  cert.  denied,  484  U.S.  844  (1987)
                                   _____________

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(holding  that  "to raise  and preserve  for review  [such a]

            claim .  . .  a  party must  obtain  the order  admitting  or

            excluding the controversial evidence in the actual setting of

            the trial."); see  also McEwen  v. City of  Norman, 926  F.2d
                          _________ ______     _______________

            1539,  1544 (10th Cir. 1991) ("A party whose motion in limine

            has been overruled must nevertheless object when the error he

            sought to prevent by his motion occurs at trial."); Wilson v.
                                                                ______

            Waggener, 837 F.2d 220,  222 (5th Cir. 1988) ("A  party whose
            ________

            motion in limine is  overruled must renew his objection  when

            the evidence is about to be introduced at trial.").

                      Even  assuming we were  to hold that  the motion in
                                                                       __

            limine  preserved the  objections  stated therein,  appellant
            ______

            would  fail, as  the objection was  presented solely  on Rule

            4033 grounds,  i.e., prejudice, confusion and  waste of time.

            Given that  Reed effectively waived any  objection to placing

            before  the  jury  the  actual  fact  of  his  prior  cocaine

            conviction, the  court clearly  did not abuse  its discretion

            under Rule 403 in refusing to exclude material details of the

            prior  offense, such as the amount of cocaine.  These details

____________________

            3.  Fed. R. Evid. 403 provides:

                      Although   relevant,   evidence  may   be
                      excluded  if  its   probative  value   is
                      substantially outweighed by the danger of
                      unfair   prejudice,   confusion  of   the
                      issues,  or  misleading the  jury,  or by
                      considerations of undue  delay, waste  of
                      time,   or   needless   presentation   of
                      cumulative evidence.

                                         -7-

tended to clarify for the jury the extent to  which the prior

            conviction  might  or  might   not  be  probative  of  Reed's

            predisposition to distribute cocaine.   While Reed later made

            other,   different  objections   to  the  testimony   of  the

            government's  witnesses, none  of  these, any  more than  the

            motion  in limine itself, served to  preserve the question of
                    __ ______

            the admissibility  of the  evidence under  Rule 404(b).   See
                                                                      ___

            Vest, 842 F.2d  at 1326;  United States v.  Munson, 819  F.2d
            ____                      _____________     ______

            337, 340 (1st Cir. 1987).

                      Absent  timely objection  to  the admission  of the

            prior  conviction evidence,  our review  is solely  for plain

            error.   Munson, 819 F.2d  at 340.   No  plain error  existed
                     ______

            here.   As  noted, Reed effectively  waived objection  to the

            fact of the 1990 conviction,  apparently because he wished to

            use the fact  that he was  on probation for  that offense  to

            strengthen  his argument that he  was not predisposed to deal

            in cocaine when approached by the undercover  agents in 1991.

            Clearly, he  was entitled  to make  such  a strategic  choice

            without interference from the  district judge.   Furthermore,

            wholly apart from the waiver, Reed's prior cocaine possession

            conviction  was, at  very  least,  arguably admissible  under
                                               ________

            Section 404(b)  to help  the  government meet  its burden  to

            establish that he was  predisposed to sell cocaine.   Even if

            Reed possessed the cocaine purely for personal use, this fact

            might  lead  a reasonable  juror to  infer  that he  was more

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likely predisposed than a nonuser to sell cocaine in order to

            support his own  habit.   Moreover, the fact  that Reed,  the

            driver of the  car, was in possession of an  ounce of cocaine

            when  arrested  tended  to  suggest     that  quantity  being

            arguably more than  normal for  personal use     that he  had

            intended  to distribute  it,  even though  charged only  with

            possession.  Thus even  if the 1990 offense and  details were

            excludable  had they been  properly objected  to (a  point we

            neither  decide nor  concede in  this opinion), any  error in

            their  admission was far from being so patent as to amount to

            clear error.  Indeed, as we already noted, the district court

            could reasonably have believed that part of the defense's own

            strategy  lay   in  trying   to  establish  Reed's   lack  of

            predisposition  by  emphasizing  the  unlikelihood   that  an

            individual  who was on probation for  a prior cocaine offense

            would  have been predisposed to expose himself to the risk of

            further punishment by dealing in cocaine.4

                      Appellant  further   argues  on  appeal   that  the

            district court erred  by denying his  motion for judgment  of

            acquittal on  the  basis of  entrapment.   In  reviewing  the

            denial  of a judgment of acquittal, the standard of review is

____________________

            4.  We also reject  appellant's contention that  the district
            court should  have given a  limiting instruction to  the jury
            regarding  the prior  conviction evidence.    Defense counsel
            never requested the court  to give such an instruction.   The
            failure  of the trial court  to give such  an instruction sua
                                                                      ___
            sponte is not reversible error.  United States v. De La Cruz,
            ______                           _____________    __________
            902 F.2d 121, 124 (1st Cir. 1990).

                                         -9-

whether,  after  viewing  the  evidence  in  the  light  most

            favorable  to the  prosecution,  any rational  trier of  fact

            could have found  the essential elements to  have been proven

            beyond  a reasonable  doubt.  United  States v.  Almonte, 952
                                          ______________     _______

            F.2d  20, 23  (1st Cir.  1991).   The affirmative  defense of

            entrapment   has  two   related   elements:  (1)   government

            inducement  of the crime, and (2) a lack of predisposition on

            the part of the defendant.  United States v. Murphy, 852 F.2d
                                        _____________    ______

            1, 5 (1st  Cir. 1988),  cert. denied, 489  U.S. 1022  (1989).
                                    ____________

            Entrapment is a defense of fact for the jury to  decide.  See
                                                                      ___

            United  States v. Pratt, 913  F.2d 982, 988  (1st Cir. 1990),
            ______________    _____

            cert. denied, 111 S. Ct. 681 (1991).  Once  the defendant has
            ____________

            established that  he was  induced  to commit  the crime,  see
                                                                      ___

            Pratt, 913 F.2d at 987-88, the government must prove beyond a
            _____

            reasonable doubt that defendant was predisposed to commit the

            crime.    Jacobson v.  United  States, 112  S.Ct.  1535, 1540
                      ________     ______________

            (1992).

                      The jury reasonably could  have found that Reed was

            not  induced by the government  to sell cocaine.   He readily

            agreed to come to the motel to meet a purported cocaine buyer

            and he made  the transfer  of cocaine and  accepted the  cash

            without hesitation.  There is no evidence that the government

            prodded him  to make the  second sale.  There  also was ample

            evidence  to  support a  jury  finding,  beyond a  reasonable

            doubt, that  Reed  was  predisposed  to  distribute  cocaine.

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Among  other things,  the  record shows  that Reed  displayed

            knowledge  about the quality and price of cocaine sold in the

            local  area.   Reed  told the  BIDE  agent that  Reed's other

            customers were satisfied with his cocaine.  We conclude  that

            the  evidence was more than  sufficient for the  jury to find

            that Reed was not entrapped.

                      Finally, appellant argues  that the district  court

            erred in  not incorporating his proposed  jury instruction on

            entrapment into  the  instructions delivered  by  the  court.

            "The trial  court's refusal to give  a particular instruction

            constitutes   reversible   error   only   if   the  requested

            instruction was (1)  correct as a matter  of substantive law,

            (2)  not  substantially  incorporated   into  the  charge  as

            rendered,  and (3)  integral  to an  important  point in  the

            case."  United  States v. McGill,  953 F.2d 10, 13  (1st Cir.
                    ______________    ______

            1992).    In  this  case, Reed's  request  was  substantially

            incorporated into the charge given and we can see no error.

                      Affirmed.
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