                             In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 03-4055
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                v.

STEVE FIEDEKE,
                                           Defendant-Appellant.

                         ____________
            Appeal from the United States District Court
     for the Northern District of Indiana, South Bend Division.
               No. 02 CR 134—Allen Sharp, Judge.
                         ____________
     ARGUED JUNE 9, 2004—DECIDED SEPTEMBER 15, 2004
                         ____________


 Before FLAUM, Chief Judge, and BAUER and EVANS, Circuit
Judges.
  BAUER, Circuit Judge.


                       I. Background
  Defendant-Appellant Steve Fiedeke and a business part-
ner, Tim Pinnick, purchased a wholesale distribution com-
pany in January, 2002. Fiedeke and Pinnick planned to sell
various products to convenience stores throughout Northern
Indiana. One of the products they sought to sell was
ephedrine, a federally regulated List I chemical. The federal
regulations require a prospective seller to obtain a license
2                                               No. 03-4055

from the Drug Enforcement Administration (“DEA”). Failure
to obtain a license and then selling is a crime.
  Fiedeke applied for a license with the DEA. DEA agents
spoke to Fiedeke and told him that they would recommend
denying his application. The DEA was apparently concerned
about the volume of ephedrine Fiedeke sought to distribute
and his plan to store the drugs in his garage. At one point
during their conversation about licensing, Fiedeke asked
DEA Agent Raber whether it was legal to sell ephedrine as
an agent of another company. Raber responded by stating
that he is not a lawyer. Fiedeke promised to appeal the de-
nial of his license application.
  At some point, Fiedeke read DEA regulation 21 C.F.R.
§ 1309.24 which reads as follows:
    Exemption of Agents and Employees. The requirement
    of registration is waived for any agent or employee of a
    person who is registered to engage in any group of in-
    dependent activities, if such agent or employee is acting
    in the usual course of his or her business or employ-
    ment.
  In April, 2002 Fiedeke contacted Dean Hollen of the Three
Rivers Trading Company, a licensed ephedrine distributer,
in the hopes of obtaining some of the drug for distribution.
Hollen repeatedly refused Fiedeke’s requests. On one of
these visits, when Hollen was out of town, Fiedeke told
Hollen’s wife that her husband had already agreed to sell
him ephedrine and that he would be selling it as Hollen’s
agent. Mrs. Hollen nonetheless refused to sell the product
to Fiedeke.
  Fiedeke tried to purchase the drug from another licensed
ephedrine distributer, Don Tinkham, owner of Bestline Foods,
who also refused Fiedeke’s requests. When DEA agents
called Tinkham in preparation for Fiedeke’s appeal of the
denial of his license, Tinkham mentioned that Fiedeke had
been trying to purchase ephedrine from him. After discuss-
ing it, Tinkham agreed to assist the DEA in an undercover
No. 03-4055                                                 3

drug operation. To that end, Tinkham called Pinnick and
said that he had changed his mind about selling ephedrine
to Pinnick and Fiedeke.
  In October, 2002 Fiedeke purchased an amount of ephe-
drine from Tinkham’s Bestline Foods and sold it to various
convenience stores in Indiana. He told one of his customers
that he had just received his license to sell ephedrine. How-
ever, when that same customer asked for more ephedrine at
a later date, Fiedeke said that the license required too
much paperwork and that he was not going to keep it.
Another store owner believed that Bestline Foods was a
competitor of Fiedeke’s.
  Fiedeke again purchased ephedrine from Bestline Foods
in late November, 2002. As he was beginning to distribute
the product, he noticed that he was being followed by the
police. Fiedeke then secreted the remaining ephedrine in a
laundromat that he owned. Shortly thereafter, Fiedeke
surrendered to the police.
  A federal grand jury returned a two-count indictment charg-
ing Fiedeke with distributing a List I chemical, ephedrine,
without being registered with the DEA and attempting to
distribute a List I chemical, ephedrine, in violation of 21
U.S.C. §§ 843(a)(9) and 846. A jury trial resulted in guilty
verdicts on both counts. Fiedeke was sentenced to four days
in jail and one year of supervised probation. The district
court stayed the execution of Fiedeke’s sentence while this
appeal is pending.


                      II. Discussion
  A. Entrapment Jury Instruction
  Fiedeke argues that the district court denied him due
process by refusing to instruct the jury on his entrapment
defense. A defendant is entitled to have the jury consider
any theory of defense supported by law and evidence. United
States v. Kelley, 864 F.2d 569, 572 (7th Cir. 1989). This does
4                                                No. 03-4055

not mean that a defendant is entitled to any particular jury
instruction. To be entitled to a particular theory of defense
instruction, the defendant must show the following: 1) the
instruction is a correct statement of the law, 2) the evidence
in the case supports the theory of defense, 3) that theory is
not already part of the charge, and 4) a failure to provide
the instruction would deny a fair trial. United States v.
Chavin, 316 F.3d 666, 670 (7th Cir. 2002). We review a
district court’s refusal to give a tendered jury instruction de
novo. United States v. Irorere, 228 F.3d 816, 825 (7th Cir.
2000).
   As a prerequisite for presenting to the jury an entrap-
ment defense the defendant must make two distinct show-
ings: 1) the government induced the defendant to commit
the crime, and 2) the defendant was not predisposed to
commit the offense. United States v. Blassingame, 197 F.3d
271, 279 (7th Cir. 1999). The entrapment defense instruc-
tion should be given to the jury only if the evidence is suf-
ficient for a reasonable jury to find entrapment. Id.
  It is clear that the government did not induce Fiedeke to
commit the crime of distributing or attempting to distribute
ephedrine without a proper license. The government
assisted in Fiedeke’s procurement and possession of the
drug, which are not criminal offenses. Furthermore, the
government did not attempt to persuade the defendant to
sell the drug or assist him in the actual distribution of the
drug.
  The principal question in entrapment cases is whether the
defendant was predisposed to commit the crime; whether he
“was an ‘unwary innocent’ or, instead, an ‘unwary criminal’
who readily availed himself of the opportunity to perpetrate
the crime.” Mathews v. United States, 485 U.S. 58, 63
(1988). Fiedeke was the unwary criminal. Prior to the
government’s involvement, Fiedeke had repeatedly at-
tempted to purchase ephedrine from Hollen and Tinkham,
knowing that he was not permitted to distribute it. On one
occasion, Fiedeke even told Hollen’s wife that her husband
No. 03-4055                                               5

had already agreed to permit Fiedeke to conduct a trans-
action for the sale of the drug and that he would be selling
it as Hollen’s agent. This was a lie. Hollen had not agreed
to sell Fiedeke any ephedrine. Fiedeke testified that he
wanted to distribute the ephedrine, that he was under no
obligation to distribute it, and that Tinkham did him a
favor by selling it to him.
  Fiedeke’s brief says, “[i]t was the government through Mr.
Tinkham who induced the defendant to purchase the
ephedrine. It was at the government’s request that Tinkham
called the defendant offering to sell ephedrine. It was the
government, through Tinkham, who assured the defendant
that everything was within DEA guidelines.” This appar-
ently was to show that he was reluctant to engage in the
criminal conduct, and would not have done so if is was not
for the government’s assurances that “everything was within
DEA guidelines.” The first sentence was shown to be untrue;
Fiedeke had attempted to obtain ephedrine without a license
before the government became involved in the investigation.
This essentially negates the importance or relevance of the
second sentence. The third sentence, however, deserves a
bit more attention.
  The statement by Tinkham that “everything was within
DEA guidelines” appears to be correct in that the purchase
of ephedrine by Fiedeke was not illegal. Therefore, the
transaction in which Tinkham and Fiedeke engaged was
within DEA guidelines and, alone would not have opened
the defendant to criminal liability. Second, the evidence
shows that Fiedeke intended to distribute the ephedrine
without such assurances anyway. The evidence shows an
attempt to fraudulently induce Hollen’s wife to sell him
ephedrine. Other instances of Fiedeke repeatedly attempt-
ing to purchase the drug prior to receiving assurances that
everything was legal also showed that he was predisposed
to commit the crime.
6                                                 No. 03-4055

    B. Burden of Proving Exception
  At trial, Fiedeke claimed that he was an agent of Tinkham
and therefore, exempt from criminal liability under 21
U.S.C. § 822(c). The trial court gave an instruction which
required the defendant to prove agency. Fiedeke claims that
this instruction improperly shifted the burden of proof and
thus, violated his right to a fair trial. In proposing the
instruction that required Fiedeke to prove agency, the gov-
ernment relied upon 21 U.S.C. § 885(a)(1) which reads, in
relevant part, as follows:
     It shall not be necessary for the United States to neg-
     ative any exemption or exception set forth in this sub-
     chapter in any complaint, information, indictment, or
     other pleading or in any trial, hearing, or other proceed-
     ing under this subchapter, and the burden of going
     forward with the evidence with respect to any such ex-
     emption or exception shall be upon the person claiming
     its benefit.
  Fiedeke concedes that 21 U.S.C. § 885(a) applies to List
I chemicals and, by extension, to him and his conduct. With
this concession, the inquiry is essentially over. Fiedeke’s
agency defense is, as his own brief says, an “exemption.” The
government is not required to “negative any exemption”
under the statute. So, the plain language of the statute
clearly puts the agency-issue’s burden of proof on Fiedeke,
for he is the person “claiming its benefit.”


    C. Specific Intent Instruction for Attempt Count
  Fiedeke’s next argument is that he was entitled to a spe-
cific intent instruction on the charge of attempt. We agree
that he was so entitled, as did the district court when it
gave a specific intent instruction. It appears as though
Fiedeke’s complaint is that he did not get his specific intent
No. 03-4055                                                    7

instruction. In reviewing a challenge to jury instructions we
view the instructions as a whole and consider the chal-
lenged instruction in the context of the entire proceeding.
Resnover v. Pearson, 965 F.3d 1453, 1463 (7th Cir. 1992). The
relevant inquiry in such issues is whether the instruction
conveyed the correct information to the jury reasonably
well. Id.
  The Seventh Edition of Black’s Law Dictionary defines
specific intent as, “[t]he intent to accomplish the precise crim-
inal act that one is later charged with.” Seventh Circuit case
law is accord with this definition for attempted crimes
require the intent to commit the underlying offense and a
substantial step towards its completion. E.g., United States
v. Magana, 118 F.3d 1173, 1198 (7th Cir. 1997). The given
instruction read, in relevant part, “the government must
prove . . . Defendant intended to distribute a List I chemical,
ephedrine product, without being registered by the Drug
Enforcement Administration; and [t]hereafter, Defendant
did an act constituting a substantial step towards the
commission of that crime but falls short of completing the
crime.” The instructions given by the district court conveyed
the specific intent information clearly and properly.


  D. The Jury Instructions as a Whole Did Not Deny Due
     Process
  Fiedeke claims, “reviewing the instructions as a whole, it
can be seen that the jury was not properly instructed on the
burden of proof.” He then goes on to rehash all his previous
arguments in support of his claim that he was denied due
process as a result of the jury instructions. As we have
found against him on his earlier arguments, they are
insufficient to support this argument. Two points made by
Fiedeke, however, deserve attention.
  Fiedeke argues that his due process rights were violated
because of “the lack of an instruction making it clear the
8                                                No. 03-4055

burden of proof remained with the government.” This argu-
ment is completely meritless. Instruction number ten, given
by the court, says “[t]he burden of proof stays with the gov-
ernment throughout the case.”
  Fiedeke’s final argument takes issue with the agency in-
struction. As was noted before, Fiedeke claimed that he was
an agent of a licensed ephedrine distributer and therefore,
he was exempt from criminal liability. Also discussed before,
we noted that the burden of proof on this issue properly
remained with Fiedeke.
  This court will not disturb a criminal conviction based
upon problems with the jury instructions unless we believe
those instructions prejudiced the defendant. United States
v. Souffront, 338 F.3d 809, 834 (7th Cir. 2003). Because it
clear that Fiedeke was not an agent of a licensed ephedrine
distributer, any inadequacies in the agency instruction could
not serve to prejudice his case.
   “Agent” is defined by 21 U.S.C. § 802(3) which reads, “an
authorized person who acts on behalf of or at the direction
of [an ephedrine] distributer.” The jury instructions on
agency—which Fiedeke makes no complaint about except
with regard to the lack of a burden of proof—required the
jury to find 1) a manifestation by the principal that the
defendant act on behalf of the principal and with his au-
thority, 2) defendant’s acceptance of principal’s authority
over him, and 3) the principal exerted control over the defen-
dant. The conversations between Fiedeke and Tinkham, the
licensed distributer, show that Tinkham never authorized
Fiedeke to sell product on his behalf. It is also clear that
Tinkham did not employ Fiedeke. There is no evidence that
Tinkham exercised any direction of, or authority over
Fiedeke. Fiedeke even testified that he decided who to sell
to and under what terms. Simply put, the evidence showing
that Fiedeke was not an agent of a licensed ephedrine
distributer is overwhelming. Therefore, since we find no
No. 03-4055                                                9

prejudice to the defendant, we do not disturb the conviction.


                     III. Conclusion
  For the reasons stated herein, we AFFIRM.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—9-15-04
