             Case: 13-10762    Date Filed: 05/27/2014   Page: 1 of 10


                                                         [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 13-10762
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 3:12-cr-00050-HLA-TEM-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,


                                     versus

GJOVALIN GJERGJI,

                                                            Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                                 (May 27, 2014)

Before PRYOR, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:

      Gjovalin Gjergji was convicted of selling a firearm to a person he knew or

had reasonable cause to believe had been convicted of a crime punishable by more
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than one year in prison, in violation of 18 U.S.C. § 922(d)(1). He makes two

arguments on appeal. First, Gjergji argues that the district court erred in denying

his request for a jury instruction on entrapment. Second, he argues that there was

insufficient evidence for the jury to find that he knew or had reasonable cause to

believe that the person to whom he sold the firearm was a convicted felon. We

address each argument in turn, and we affirm his conviction.

                                          I.

      We review a district court’s refusal to give a requested jury instruction for an

abuse of discretion. United States v. Eckhardt, 466 F.3d 938, 948 (11th Cir. 2006).

Generally, the failure to give a particular instruction is reversible error where the

requested instruction (1) was correct, (2) was not substantially covered by the

charge actually given, and (3) dealt with some point in the trial so important that

failure to give the instruction seriously impaired the defendant’s ability to conduct

his defense. Id. Review of a district court’s refusal to instruct the jury on

entrapment, however, requires additional analysis.

      Entrapment is an affirmative defense consisting of two elements: (1)

government inducement of the crime and (2) lack of a predisposition to commit the

crime on the part of the defendant. United States v. Orisnord, 483 F.3d 1169, 1178

(11th Cir. 2007). Before the defense of entrapment may be presented to the jury,

an evidentiary basis for the defense must exist, meaning the trial court must


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determine whether a jury could entertain a reasonable doubt as to whether the

defendant was entrapped. United States v. Ryan, 289 F.3d 1339, 1343 (11th Cir.

2002). The defendant bears the initial burden of production as to government

inducement, which he can meet by producing any evidence sufficient to raise a

jury issue regarding whether the government’s conduct created a substantial risk

that the offense would be committed by a person other than one ready to commit it.

Orisnord, 483 F.3d at 1178.

      In meeting this initial burden, evidence of the government’s mere suggestion

of a crime or initiation of contact is not enough. United States v. Brown, 43 F.3d

618, 623 (11th Cir. 1995). Rather, “government inducement requires an element

of persuasion or mild coercion[,] . . . . opportunity plus something like excessive

pressure or manipulation of a non-criminal motive.” Id. The defendant may show

persuasion or mild coercion by presenting evidence that he did not favorably

receive the government plan and that the government had to push it on him or that

several attempts to arrange an illicit deal had failed and that the defendant had

directly refused to participate on at least one occasion. Orisnord, 483 F.3d at 1178.

If the defendant meets his initial burden as to inducement, the burden then shifts to

the government to prove beyond a reasonable doubt that the defendant was

predisposed to commit the offense. Id.




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       “We have long held that the sufficiency of the defendant’s evidence of

government inducement is a legal issue to be decided by the trial court.” United

States v. Sistrunk, 622 F.3d 1328, 1333 (11th Cir. 2010). However, this Court has

not conclusively resolved the proper standard of review regarding whether a

defendant presented sufficient evidence of government inducement to merit an

entrapment instruction. 1 See id. (“Nevertheless, while some of our cases have

predictably applied a de novo standard of review, others have purported to review

the question for an abuse of discretion.” (citations omitted)). We decline to resolve

the issue today, as the result in this case would be the same under either standard.

       Even under a de novo standard of review, the evidence presented at trial in

this case was insufficient to merit a jury instruction on entrapment. The evidence

shows that Gjergji first met the government informant to whom he sold the firearm

at an underground poker club. The informant, who had been arrested on drug

charges, was cooperating with the government and agreed to observe the patrons in


       1
               While some of our cases have reviewed the sufficiency of a defendant’s evidence
on inducement de novo, others have purported to review the question for an abuse of discretion.
Compare United States v. Davis, 902 F.2d 860, 866 (11th Cir. 1990) (“The sufficiency of the
defendant’s evidence is a question of law, which requires the district court to review the evidence
in the light most favorable to the defendant. The trial court’s ruling on this legal question is
subject to de novo review when on appeal.” (citations omitted)), and United States v. Gates, 967
F.2d 497, 499 (same), with United States v. Alston, 895 F.2d 1362, 1368 (11th Cir. 1990) (“The
determination of whether a sufficient evidentiary foundation exists in the record which could
support a jury’s acceptance of an entrapment defense is properly a question for the trial judge,
the standard of review being abuse of discretion.” (internal quotation mark omitted)), and Ryan,
289 F.3d at 1344 (determining “whether the district court in this case abused its discretion in
finding that Ryan did not produce evidence sufficient to raise a jury issue regarding government
inducement” (internal quotation mark omitted)).
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the poker club and report any criminal activity to the government. After he

conveyed his belief that Gjergji would sell him a firearm, the government recorded

three telephone conversations between Gjergji and the informant on July 27, 2007.

In one of the phone calls, the informant attempted to talk to Gjergji about a

potential drug deal, referring to the drugs as “white girl” and candy,” to which

Gjergji responded, “I don’t know what you are talking about.” In the next

conversation, which Gjergji initiated, Gjergji suggested that the two meet at his

family’s restaurant, and he gave the informant directions. In the last conversation,

the informant asked Gjergji if he wanted to meet at the poker club instead, but

Gjergji insisted on meeting at the restaurant and provided additional directions.

      The government recorded the conversations that took place between Gjergji

and the informant inside the restaurant. After Gjergji instructed his cousin to show

the informant a handgun that Gjergji had sold him, the cousin offered to sell the

gun to the informant, who declined because of the price. The conversation then

eventually turned to the firearm transaction at issue. After the informant asked if

Gjergji had “that thing” with him at the restaurant, Gjergji responded that he was

going to have someone follow him to his house because he did not want to carry

the gun in his car. The informant offered to follow Gjergji and told him that he

had to be somewhere by 6:00 that evening. Gjergji then asked the informant if he

“really need[ed] it tonight,” and the informant responded that he had to have the


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gun that evening. Upon leaving the restaurant, the informant followed Gjergji to a

McDonald’s and waited there while Gjergji drove elsewhere to retrieve the

firearm. Gjergji returned to the McDonald’s parking lot and gave the informant a

nine-millimeter semi-automatic handgun wrapped in a shirt in exchange for $400.

      Gjergji argues on appeal that there was sufficient evidence from which a

jury could conclude that the informant to whom he sold the firearm originated the

criminal design, implanted it in Gjergji’s mind, and induced him to perform it.

Gjergji claims that the informant was highly motivated to persuade or coerce

someone to engage in illegal activity to curry leniency from the government on his

own charges and that the informant befriended Gjergji, who was particularly

susceptible because of his young age of 19, for the purpose of inducing him to

commit a crime. Gjergji also maintains that his so-called rejection of the

informant’s offer to participate in a drug deal demonstrates his reluctance to

engage in criminal activity. We find, however, that the evidence does not reflect

the requisite degree of persuasion or mild coercion required to demonstrate

government inducement and warrant a jury instruction on entrapment.

      “To raise an entrapment defense, a defendant must prove more than that the

government first solicited him or merely provided the opportunity for the crime.”

Sistrunk, 622 F.3d at 1333 (internal quotation marks omitted). Here, the evidence

proffered at trial shows little more than the government informant first soliciting


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Gjergji and providing an opportunity to commit the offense. First, the fact that

Gjergji responded to the informant’s attempt to discuss a drug transaction with “I

don’t know what you are talking about” does not demonstrate that Gjergji “had not

favorably received the government plan, and the government had to ‘push it’ on

him or that several attempts at setting up an illicit deal had failed and on at least

one occasion he had directly refused to participate.” Orisnord, 483 F.3d at 1178.

Second, asking the informant if he really needed the firearm that evening similarly

does not demonstrate that Gjergji resisted participating in the transaction. 2 Lastly,

although the informant had motive to arrange an illicit transaction with Gjergji,

such motive alone is insufficient to constitute inducement. See United States v.

Timberlake, 559 F.2d 1375, 1379 (5th Cir. 1977) (finding that the trial judge erred

in failing to instruct the jury on entrapment where (1) the informant had motive to

arrange an illicit drug deal with the defendant, (2) the government targeted the

defendant specifically, (3) the evidence showed that the first several contacts

between the informant and the defendant failed to result in the sale of narcotics,


       2
                 Gjergji also argues that statements he made during a conversation with the
informant at the restaurant reveal that he initially resisted participating in any firearm transaction.
At some point during the conversation, Gjergji stated, “I don’t know, man. I mean he told me
(inaudible) but I mean I don’t want to do anything. I want to find the right person for it. You
can do what you want to do and then you can give me a percentage like whatever, like you know.
I don’t want to be involved. None of that.” Gjergji provided no context for these statements,
and it appears that they were entirely unrelated to the firearm transaction between Gjergji and the
informant, instead resulting from the informant’s expressed interest in getting involved with the
activities of a third party. These statements therefore also fail to suggest any inducement by the
government.
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and (4) a witness testified that the defendant directly rejected the informant’s

attempt to discuss procuring cocaine).

       Thus, because Gjergji failed to meet his burden as to government

inducement, the government was not required to prove beyond a reasonable doubt

that Gjergji was predisposed to commit the crime, and the district court did not err

in refusing to instruct the jury on entrapment.3

                                                 II.

       Gjergji also argues that there was insufficient evidence for the jury to find

that he knew or had reasonable cause to believe that the informant to whom he sold

the gun was a convicted felon. We review the sufficiency of the evidence de novo,

viewing the evidence in the light most favorable to the government and drawing all

reasonable inferences in favor of the jury’s verdict. United States v. Jiminez, 564

F.3d 1280, 1284 (11th Cir. 2009). We “affirm the conviction if a reasonable trier

of fact could conclude that the evidence establishes guilt beyond a reasonable

doubt.” United States v. Jayyousi, 657 F.3d 1085, 1104 (11th Cir. 2011).


       3
                We also note that defense counsel argued entrapment to the jury despite the lack
of an instruction on the defense. At trial, Gjergji essentially argued that he would not have sold
the firearm to the informant if the informant had explicitly said that he was a convicted felon and
that the aggregate effect of other factors—the informant’s motive in approaching Gjergji and his
choice of words in discussing his time in prison, as well as Gjergji’s relative youth and any
language barrier—amounted to coercion. Gjergji presented this argument to the jury through his
opening statement, cross-examination of the informant, and closing argument. Thus, even if
Gjergji had presented sufficient evidence of inducement and even if the government had failed to
show Gjergji’s predisposition to commit the offense, the lack of a jury instruction on entrapment
nevertheless did not seriously impair Gjergji’s ability to conduct his defense.
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      18 U.S.C. § 922(d)(1) states in relevant part: “It shall be unlawful for any

person to sell or otherwise dispose of any firearm or ammunition to any person

knowing or having reasonable cause to believe that such person . . . is under

indictment for, or has been convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year.” To convict a defendant under this

section, the government must establish beyond a reasonable doubt that (1) the

defendant sold a firearm, (2) the purchaser was a convicted felon, and (3) the

defendant knew or had reasonable cause to believe that the purchaser had a prior

felony conviction. United States v. Peters, 403 F.3d 1263, 1268 (11th Cir. 2005).

“[T]o have ‘reasonable cause to believe’ that someone is a convicted felon means

to have knowledge of facts which, although not amounting to direct knowledge,

would cause a reasonable person, knowing the same things, reasonably to conclude

that the other person was a convicted felon.” Id. at 1269.

      There was sufficient evidence here from which a jury could conclude that

Gjergji knew or had reasonable cause to believe that the informant to whom he

sold the firearm had been convicted of “a crime punishable by imprisonment for a

term exceeding one year.” Although Gjergji emphasizes that the informant never

explicitly told him that he was a convicted felon, there is ample evidence in the

record indicating that the informant made multiple references to his having spent

five years in federal prison for selling a large amount of cocaine. Furthermore,


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Gjergji’s suggestion that he may not have heard or understood the informant’s

references to his stint in prison due to any language barrier or the noisy

environment of the restaurant is unconvincing. The jury was able to listen to audio

recordings of the conversations during which the informant told Gjergji repeatedly

that he had spent five years in federal prison, and there was no evidence that

Gjergji did not hear or understand those references. In fact, he was responsive to

the informant’s statements.

      Because the district court did not err in failing to instruct the jury on

entrapment, and because there was ample evidence from which a jury could

conclude that Gjergji knew or at least had reasonable cause to believe that the

informant had been convicted of a crime punishable by more than one year in

prison, we affirm Gjergji’s conviction under § 922(d)(1).

      AFFIRMED.




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