UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________
No. 94-60781 ____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL G. ROBERTS,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Mississippi (3:92CR92WS) _________________________________________________________________
August 13, 1999
Before KING, Chief Judge, SMITH and BARKSDALE, Circuit Judges.
PER CURIAM:1
Chiefly at issue in Michael Roberts’ appeal of his drug
trafficking conspiracy conviction is whether the failure to give
entrapment and compensated-witness instructions was plain error.
We AFFIRM.
I.
In 1992, an FBI confidential informant, Chancey, heard from a
third man that Bradfield wanted to engage in drug trafficking.
1 Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Chancey contacted the FBI, agreeing to set up a transaction and
cooperate, in exchange for a share of the money recovered. After
extensive discussions with Bradfield and several abortive attempts,
Chancey arranged in June 1992 to sell Bradfield four kilograms of
cocaine for $50,000 at a motel/restaurant in Ridgeland,
Mississippi.
Chancey met Bradfield and four others at the restaurant. In
the restroom, Bradfield told Chancey (recorded) that some of the
money was at the restaurant and some elsewhere. Chancey went back
to his motel room; the others left in various vehicles.
At a service station a few miles north of the restaurant, an
FBI Agent observed a Buick stopped beside a pickup belonging to one
of the participants from the restaurant. The pickup drove behind
the station’s convenience store; one of the men in the Buick left
it and entered the pickup. The Buick then left the service
station, heading south toward the motel/restaurant. The driver of
the pickup parked, entered another pickup belonging to a different
participant from the restaurant, and also left. According to the
observing Agents, the people in the vehicles did not purchase
gasoline and appeared to be checking for the presence of police
officers.
Meanwhile, Bradfield visited Chancey’s motel room. Bradfield
referred (videotaped) to “the man downstairs with the money”. The
Buick was parked outside, with Roberts in the front passenger seat.
- 2 - Bradfield and Chancey entered the Buick. According to Chancey,
Roberts showed him one sack of money and Bradfield another.
After Chancey returned to his room, supposedly to obtain the
drugs, Bradfield and Roberts were arrested. Roberts attempted to
escape but was apprehended near the Buick. He had approximately
$1,000 in cash in his pocket; approximately $20,000 and a loaded
gun were on the Buick front-seat passenger-side floorboard in a
plastic bag, the gun sticking out of the bag; and approximately
$29,000 was in a paper bag in the back seat.
The Government paid Chancey $12,500, a quarter of the money
confiscated. (The jury was told of this compensation.)
Roberts, Bradfield, and two others were indicted under 21
U.S.C. § 846 for conspiracy to possess cocaine with intent to
distribute; Roberts was also indicted under 18 U.S.C. § 924(c) for
using or carrying a firearm during a drug offense. A jury
convicted all four defendants in July 1994. Roberts was sentenced,
inter alia, to 14 years in prison.
II.
Disposition of this appeal has been delayed greatly by new
counsel having to be appointed on three occasions and by resolution
of United States v. Brown, 161 F.3d 256 (5th Cir. 1998) (en banc),
discussed in note 2, infra.
- 3 - Four issues were presented; only three remain.2 None of the
remaining issues was raised in district court.
A.
Roberts contends that the district court should have
instructed the jury on the suspect credibility of a compensated
witness. Because Roberts did not request the instruction, we
review only for plain error, which to even be considered for
reversal must (1) be error, (2) be clear or obvious, and (3) affect
substantial rights; even then, we will reverse only if the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings. E.g., United States v. Olano, 507 U.S. 725,
732-36 (1993); United States v. Calverley, 37 F.3d 160, 162-64 (5th
Cir. 1994) (en banc).
United States v. Cervantes-Pacheco, 826 F.2d 310, 316 (5th
Cir. 1987) (en banc), reversed our court’s previous categorical
exclusion of compensated-witness testimony, but required that “the
trial court should give a careful instruction to the jury pointing
out the suspect credibility of a fact witness who has been
compensated for his testimony”. The Government concedes such an
2 Roberts has withdrawn his challenge to his 18 U.S.C. § 924(c) conviction for using or carrying a weapon during a drug crime, in the light of United States v. Brown, 161 F.3d 256, 259 (5th Cir. 1998) (en banc) (harmless error in § 924(c) case when jury finding erroneously-defined “use” necessarily found “carrying”).
All outstanding motions are DENIED.
- 4 - instruction should have accompanied Chancey’s testimony, but
maintains that his testimony did not prejudice Roberts.
Roberts relies on United States v. Bradfield, 103 F.3d 1207
(5th Cir.), superseded, 113 F.3d 515 (5th Cir. 1997), which
initially reversed co-defendant Bradfield’s conviction on
Cervantes-Pacheco (including holding that, if need be, trial court
must sua sponte give the instruction, 103 F.3d at 1218) and
entrapment grounds. The revised opinion relies solely on
entrapment. 113 F.3d at 524. Roberts’ brief was filed before the
withdrawal of the first opinion.
Of course, a superseded opinion is no longer binding.
Moreover, Chancey’s testimony against Roberts was far less
significant than his testimony against Bradfield, or even than his
testimony against co-defendant Williams, see 113 F.3d at 525-26,
for whom neither Bradfield opinion required a Cervantes-Pacheco
warning.
We find no reversible plain error. Chancey’s testimony
regarding Roberts was minimal and only confirmed the testimony of
Agents who observed the transaction. That Chancey testified that
Roberts pointed to the money is insignificant, given that Roberts
was identified by Bradfield as the man with the money, had a large
amount of cash in his pocket, sat in the Buick during a drug
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UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________
No. 94-60781 ____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL G. ROBERTS,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Mississippi (3:92CR92WS) _________________________________________________________________
August 13, 1999
Before KING, Chief Judge, SMITH and BARKSDALE, Circuit Judges.
PER CURIAM:1
Chiefly at issue in Michael Roberts’ appeal of his drug
trafficking conspiracy conviction is whether the failure to give
entrapment and compensated-witness instructions was plain error.
We AFFIRM.
I.
In 1992, an FBI confidential informant, Chancey, heard from a
third man that Bradfield wanted to engage in drug trafficking.
1 Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Chancey contacted the FBI, agreeing to set up a transaction and
cooperate, in exchange for a share of the money recovered. After
extensive discussions with Bradfield and several abortive attempts,
Chancey arranged in June 1992 to sell Bradfield four kilograms of
cocaine for $50,000 at a motel/restaurant in Ridgeland,
Mississippi.
Chancey met Bradfield and four others at the restaurant. In
the restroom, Bradfield told Chancey (recorded) that some of the
money was at the restaurant and some elsewhere. Chancey went back
to his motel room; the others left in various vehicles.
At a service station a few miles north of the restaurant, an
FBI Agent observed a Buick stopped beside a pickup belonging to one
of the participants from the restaurant. The pickup drove behind
the station’s convenience store; one of the men in the Buick left
it and entered the pickup. The Buick then left the service
station, heading south toward the motel/restaurant. The driver of
the pickup parked, entered another pickup belonging to a different
participant from the restaurant, and also left. According to the
observing Agents, the people in the vehicles did not purchase
gasoline and appeared to be checking for the presence of police
officers.
Meanwhile, Bradfield visited Chancey’s motel room. Bradfield
referred (videotaped) to “the man downstairs with the money”. The
Buick was parked outside, with Roberts in the front passenger seat.
- 2 - Bradfield and Chancey entered the Buick. According to Chancey,
Roberts showed him one sack of money and Bradfield another.
After Chancey returned to his room, supposedly to obtain the
drugs, Bradfield and Roberts were arrested. Roberts attempted to
escape but was apprehended near the Buick. He had approximately
$1,000 in cash in his pocket; approximately $20,000 and a loaded
gun were on the Buick front-seat passenger-side floorboard in a
plastic bag, the gun sticking out of the bag; and approximately
$29,000 was in a paper bag in the back seat.
The Government paid Chancey $12,500, a quarter of the money
confiscated. (The jury was told of this compensation.)
Roberts, Bradfield, and two others were indicted under 21
U.S.C. § 846 for conspiracy to possess cocaine with intent to
distribute; Roberts was also indicted under 18 U.S.C. § 924(c) for
using or carrying a firearm during a drug offense. A jury
convicted all four defendants in July 1994. Roberts was sentenced,
inter alia, to 14 years in prison.
II.
Disposition of this appeal has been delayed greatly by new
counsel having to be appointed on three occasions and by resolution
of United States v. Brown, 161 F.3d 256 (5th Cir. 1998) (en banc),
discussed in note 2, infra.
- 3 - Four issues were presented; only three remain.2 None of the
remaining issues was raised in district court.
A.
Roberts contends that the district court should have
instructed the jury on the suspect credibility of a compensated
witness. Because Roberts did not request the instruction, we
review only for plain error, which to even be considered for
reversal must (1) be error, (2) be clear or obvious, and (3) affect
substantial rights; even then, we will reverse only if the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings. E.g., United States v. Olano, 507 U.S. 725,
732-36 (1993); United States v. Calverley, 37 F.3d 160, 162-64 (5th
Cir. 1994) (en banc).
United States v. Cervantes-Pacheco, 826 F.2d 310, 316 (5th
Cir. 1987) (en banc), reversed our court’s previous categorical
exclusion of compensated-witness testimony, but required that “the
trial court should give a careful instruction to the jury pointing
out the suspect credibility of a fact witness who has been
compensated for his testimony”. The Government concedes such an
2 Roberts has withdrawn his challenge to his 18 U.S.C. § 924(c) conviction for using or carrying a weapon during a drug crime, in the light of United States v. Brown, 161 F.3d 256, 259 (5th Cir. 1998) (en banc) (harmless error in § 924(c) case when jury finding erroneously-defined “use” necessarily found “carrying”).
All outstanding motions are DENIED.
- 4 - instruction should have accompanied Chancey’s testimony, but
maintains that his testimony did not prejudice Roberts.
Roberts relies on United States v. Bradfield, 103 F.3d 1207
(5th Cir.), superseded, 113 F.3d 515 (5th Cir. 1997), which
initially reversed co-defendant Bradfield’s conviction on
Cervantes-Pacheco (including holding that, if need be, trial court
must sua sponte give the instruction, 103 F.3d at 1218) and
entrapment grounds. The revised opinion relies solely on
entrapment. 113 F.3d at 524. Roberts’ brief was filed before the
withdrawal of the first opinion.
Of course, a superseded opinion is no longer binding.
Moreover, Chancey’s testimony against Roberts was far less
significant than his testimony against Bradfield, or even than his
testimony against co-defendant Williams, see 113 F.3d at 525-26,
for whom neither Bradfield opinion required a Cervantes-Pacheco
warning.
We find no reversible plain error. Chancey’s testimony
regarding Roberts was minimal and only confirmed the testimony of
Agents who observed the transaction. That Chancey testified that
Roberts pointed to the money is insignificant, given that Roberts
was identified by Bradfield as the man with the money, had a large
amount of cash in his pocket, sat in the Buick during a drug
transaction with $20,000 and a loaded gun at his feet, and fled
when law enforcement officers arrived.
- 5 - B.
Roberts claims that the district court should have instructed
the jury on entrapment, urging our court to adopt a “derivative
entrapment” theory. Again, because Roberts did not request the
instruction, we review only for plain error.
Roberts asserts that the district court’s discussion of the
issue rendered any request futile. However, the district court
invited such an objection, indicating that it would consider it if
raised:
Well, I need not pass on whether there could be a derivative argument right now, because I have not heard an argument for it. To this point, only one defendant has urged the defense of entrapment, and that was [Bradfield]. The other three defendants have not said anything at all concerning entrapment. And since they have not even sought to raise it, then I need not pass on whether they can argue entrapment on some derivative theory. At this juncture, entrapment is simply not before the Court as based on any evidence or facts presented by any other defendants.
We find no plain error. Whatever the “plethora of evidence of
government inducement” of Bradfield, Bradfield, 113 F.3d at 523,
Roberts presented no evidence (and the Government offered none)
regarding how Roberts became involved in the scheme. Such a prima
facie case is essential to an entrapment defense.
“Entrapment is an affirmative defense that requires a
defendant to show he was induced to commit a criminal act by a
- 6 - government agent and that he was not predisposed to commit the act
without the inducement.” United States v. Pruneda-Gonzalez, 953
F.2d 190, 197 (5th Cir. 1992). While cases such as United States
v. Anderton, 629 F.2d 1044 (5th Cir. 1980), and United States v.
Hollingsworth, 27 F.3d 1196 (7th Cir. 1994) (en banc), regard
government use of intermediaries to induce crime as entrapment,
there is simply no evidence that Bradfield induced Roberts to be
involved, let alone in a way attributable to the Government. See
Anderton, 629 F.2d at 1048 n.3 (to be entrapment, intermediary
“must induce the crime”); Hollingsworth, 27 F.3d at 1204
(entrapment “when a private individual, himself entrapped, acts as
agent or conduit for governmental efforts at entrapment”, but not
when “the first person whom the government entraps expands,
embroiders, or elaborates the scheme proposed to him by the
government”).
C.
Roberts charges ineffective assistance of trial counsel.
However, “[w]e do not review a claim of ineffective assistance of
counsel on direct appeal unless the district court has first
addressed it or unless the record is sufficiently developed to
allow us to evaluate the claim on its merits”. United States v.
Villegas-Rodriguez, 171 F.3d 224, 230 (5th Cir. 1999) (emphasis
added). Neither basis applies. Therefore, we do not decide this
- 7 - claim. Of course, Roberts may still raise it under 28 U.S.C. §
2255.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
- 8 -