IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_____________________
No. 91-2803 _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS HUDSON,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________
(January 21, 1993)
Before KING, JOHNSON, and DUHÉ, Circuit Judges.
JOHNSON, Circuit Judge:
Thomas Hudson was arrested on January 4, 1990 after Wayne
Patterson, his partner in a counterfeiting scheme, turned out to
be Winston Padgett, an officer with the Texas Department of
Public Safety. Hudson was charged with one count of
counterfeiting, one count of attempting to sell counterfeit
currency, and one count of delivering counterfeit currency. At
trial, Hudson's only defense was that he had been entrapped. The
jury rejected this defense and Hudson was convicted on all
counts. Hudson now appeals, arguing that (1) the government
failed to present sufficient evidence of Hudson's predisposition
to commit the offenses; (2) the district court erred in failing to give Hudson's proposed jury instruction on entrapment; and (3)
the district court erred in refusing to instruct the jury on the
defense of outrageous government conduct. Finding no error, this
Court affirms the judgment of the district court.
Predisposition
Hudson's entire defense was based upon the theory of
entrapment. The Supreme Court has long recognized that the
government may not "play[] on the weaknesses of an innocent party
and beguile[] him into committing crimes which he otherwise would
not have attempted." Sherman v. United States, 356 U.S. 369, 376
(1958).
The first step in a successful entrapment defense is to make
a prima facie showing that "government conduct 'created a
substantial risk that an offense would be committed by a person
other than one ready to commit it.' " United States v. Pruneda-
Gonzalez, 953 F.2d 190, 197 (5th Cir.), cert. denied, 112 S.Ct.
2952 (1992) (quoting United States v. Kang, 934 F.2d 621, 624
(5th Cir. 1991); United States v. Johnson, 872 F.2d 612, 620 (5th
Cir. 1989). Once a defendant clears this hurdle, he is entitled
to a jury instruction on the issue. United States v. Menesses,
962 F.2d 420 (5th Cir. 1992). Hudson made such a prima facie
showing at trial, and the district court did instruct the jury on
the issue of entrapment. After the defendant satisfies this
threshold requirement, the burden shifts to the government to
"prove beyond reasonable doubt that the defendant was disposed to
2 commit the criminal act prior to first being approached by
Government agents." Jacobson v. United States, 112 S.Ct. 1535,
1540 (1992). Once the jury has been instructed on entrapment but
has rejected the defense, the standard of review before this
Court is "whether, when viewing the evidence in the light most
favorable to the Government, a reasonable jury could find, beyond
a reasonable doubt, that the defendant was predisposed to commit
the offense." United States v. Morris, 974 F.2d 587, 588 (5th
Cir. 1992); see United States v. Arditti, 955 F.2d 331, 343 (5th
Cir. 1992).
It is well established that a defendant's enthusiasm for the
crime can satisfy the predisposition requirement. Arditti, 955
F.2d at 343. The testimony of Officer Padgett was sufficient to
justify a jury finding that Hudson was an enthusiastic
participant in the counterfeiting scheme. Although the version
of events presented by Hudson differed sharply from the version
presented by government agents, the jury was entitled to credit
the testimony of Padgett rather than Hudson. When viewing the
evidence in the light most favorable to the government, this
Court cannot say that no reasonable jury could find that Hudson
was predisposed to commit the offense.
The Jury Charge on Entrapment
Next, Hudson challenges the district court's jury
instructions on the issue of entrapment. A trial judge has
"substantial latitude in tailoring his instructions as long as
3 they fairly and adequately cover the issues presented by the
case." United States v. Kimmel, 777 F.2d 290, 293 (5th Cir.
1985), cert. denied, 476 U.S. 1104 (1986) (quoting United States
v. Pool, 660 F.2d 547, 548 (5th Cir. 1981)). A trial judge's
refusal to deliver a requested instruction is reversible error
only if three conditions exist:
(1) the instruction is substantially correct:
(2) it is not substantially covered in the charge actually given to the jury; and
(3) it concerns an important point in the trial so that the failure to give it seriously impairs the defendant's ability to present a given defense effectively.
United States v. Grissom, 645 F.2d 461, 464 (5th Cir. 1981).
This Court will reverse only if the defendant was improperly
denied the chance to convey his case to the jury. United States
v. Hunt, 794 F.2d 1095, 1097 (5th Cir. 1986).
Hudson appears to object both to the district court's
rejection of his proposed instruction and to the content of the
charge actually given. To the extent that Hudson argues that it
was error for the district court to reject the exact wording of
Hudson's proposed jury charge, his argument is utterly without
merit. In reviewing a jury charge this Court must "test the
instructions not against [the defendant]'s recommended
instructions--for [the defendant] lacks the right to have his
recommendations adopted word for word--but against the law."
Kimmel, 777 F.2d at 292-93.
Hudson also argues that the charge actually given by the
district court did not adequately stress that the government must
4 prove predisposition beyond a reasonable doubt. The charge,
however, expressly stated that "the Government must prove beyond
a reasonable doubt that the Defendant was not entrapped." Hudson
does not point to any incorrect statement in the charge, nor does
he explain how the charge impaired his ability to present his
entrapment defense effectively. We find no reversible error in
the district court's jury charge on the issue of entrapment.
Outrageous Government Conduct
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_____________________
No. 91-2803 _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS HUDSON,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________
(January 21, 1993)
Before KING, JOHNSON, and DUHÉ, Circuit Judges.
JOHNSON, Circuit Judge:
Thomas Hudson was arrested on January 4, 1990 after Wayne
Patterson, his partner in a counterfeiting scheme, turned out to
be Winston Padgett, an officer with the Texas Department of
Public Safety. Hudson was charged with one count of
counterfeiting, one count of attempting to sell counterfeit
currency, and one count of delivering counterfeit currency. At
trial, Hudson's only defense was that he had been entrapped. The
jury rejected this defense and Hudson was convicted on all
counts. Hudson now appeals, arguing that (1) the government
failed to present sufficient evidence of Hudson's predisposition
to commit the offenses; (2) the district court erred in failing to give Hudson's proposed jury instruction on entrapment; and (3)
the district court erred in refusing to instruct the jury on the
defense of outrageous government conduct. Finding no error, this
Court affirms the judgment of the district court.
Predisposition
Hudson's entire defense was based upon the theory of
entrapment. The Supreme Court has long recognized that the
government may not "play[] on the weaknesses of an innocent party
and beguile[] him into committing crimes which he otherwise would
not have attempted." Sherman v. United States, 356 U.S. 369, 376
(1958).
The first step in a successful entrapment defense is to make
a prima facie showing that "government conduct 'created a
substantial risk that an offense would be committed by a person
other than one ready to commit it.' " United States v. Pruneda-
Gonzalez, 953 F.2d 190, 197 (5th Cir.), cert. denied, 112 S.Ct.
2952 (1992) (quoting United States v. Kang, 934 F.2d 621, 624
(5th Cir. 1991); United States v. Johnson, 872 F.2d 612, 620 (5th
Cir. 1989). Once a defendant clears this hurdle, he is entitled
to a jury instruction on the issue. United States v. Menesses,
962 F.2d 420 (5th Cir. 1992). Hudson made such a prima facie
showing at trial, and the district court did instruct the jury on
the issue of entrapment. After the defendant satisfies this
threshold requirement, the burden shifts to the government to
"prove beyond reasonable doubt that the defendant was disposed to
2 commit the criminal act prior to first being approached by
Government agents." Jacobson v. United States, 112 S.Ct. 1535,
1540 (1992). Once the jury has been instructed on entrapment but
has rejected the defense, the standard of review before this
Court is "whether, when viewing the evidence in the light most
favorable to the Government, a reasonable jury could find, beyond
a reasonable doubt, that the defendant was predisposed to commit
the offense." United States v. Morris, 974 F.2d 587, 588 (5th
Cir. 1992); see United States v. Arditti, 955 F.2d 331, 343 (5th
Cir. 1992).
It is well established that a defendant's enthusiasm for the
crime can satisfy the predisposition requirement. Arditti, 955
F.2d at 343. The testimony of Officer Padgett was sufficient to
justify a jury finding that Hudson was an enthusiastic
participant in the counterfeiting scheme. Although the version
of events presented by Hudson differed sharply from the version
presented by government agents, the jury was entitled to credit
the testimony of Padgett rather than Hudson. When viewing the
evidence in the light most favorable to the government, this
Court cannot say that no reasonable jury could find that Hudson
was predisposed to commit the offense.
The Jury Charge on Entrapment
Next, Hudson challenges the district court's jury
instructions on the issue of entrapment. A trial judge has
"substantial latitude in tailoring his instructions as long as
3 they fairly and adequately cover the issues presented by the
case." United States v. Kimmel, 777 F.2d 290, 293 (5th Cir.
1985), cert. denied, 476 U.S. 1104 (1986) (quoting United States
v. Pool, 660 F.2d 547, 548 (5th Cir. 1981)). A trial judge's
refusal to deliver a requested instruction is reversible error
only if three conditions exist:
(1) the instruction is substantially correct:
(2) it is not substantially covered in the charge actually given to the jury; and
(3) it concerns an important point in the trial so that the failure to give it seriously impairs the defendant's ability to present a given defense effectively.
United States v. Grissom, 645 F.2d 461, 464 (5th Cir. 1981).
This Court will reverse only if the defendant was improperly
denied the chance to convey his case to the jury. United States
v. Hunt, 794 F.2d 1095, 1097 (5th Cir. 1986).
Hudson appears to object both to the district court's
rejection of his proposed instruction and to the content of the
charge actually given. To the extent that Hudson argues that it
was error for the district court to reject the exact wording of
Hudson's proposed jury charge, his argument is utterly without
merit. In reviewing a jury charge this Court must "test the
instructions not against [the defendant]'s recommended
instructions--for [the defendant] lacks the right to have his
recommendations adopted word for word--but against the law."
Kimmel, 777 F.2d at 292-93.
Hudson also argues that the charge actually given by the
district court did not adequately stress that the government must
4 prove predisposition beyond a reasonable doubt. The charge,
however, expressly stated that "the Government must prove beyond
a reasonable doubt that the Defendant was not entrapped." Hudson
does not point to any incorrect statement in the charge, nor does
he explain how the charge impaired his ability to present his
entrapment defense effectively. We find no reversible error in
the district court's jury charge on the issue of entrapment.
Outrageous Government Conduct
Finally, Hudson argues that the district court erred in
refusing to instruct the jury on the defense of outrageous
government conduct. In a nutshell, the outrageous conduct
defense is available when the conduct of government agents is so
outrageous that due process principles bar the government from
invoking the judicial process to obtain a conviction. See United
States v. Russell, 411 U.S. 423, 431-32 (1973); United States v.
Stanley, 765 F.2d 1224, 1232 (5th Cir. 1985). Under the law of
this Circuit, however, a claim of outrageous conduct presents a
question of law, not a question of fact. Id. at 1232. Since the
decision was properly one for the court, not the jury, it could
not have been error to refuse the requested jury charge.
Conclusion
For the reasons stated, we hold that the government
presented sufficient evidence to show that Hudson was predisposed
to commit the offenses charged. We also find no error in the
5 district court's jury charge on the issue of entrapment.
Finally, it was not error for the district court to refuse to
charge the jury on the defense of outrageous government conduct.
Accordingly, the judgment of the district court is affirmed.