                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS
                                                                            FILED
                               FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                                ________________________ ELEVENTH CIRCUIT
                                                                     MAY 27, 2011
                                       No. 10-13344                   JOHN LEY
                                   Non-Argument Calendar                CLERK
                                 ________________________

                          D.C. Docket No. 5:09-cr-00049-MSS-GRJ-1

UNITED STATES OF AMERICA

lllllllllllllllllllll                                                    Plaintiff-Appellee,

                                            versus

MICHAEL EUGENE RUDKIN,

lllllllllllllllllllll                                              Defendant-Appellant,

                                ________________________

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

                                        (May 27, 2011)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

         Michael Rudkin appeals his convictions for attempted murder of an

employee of the United States, in violation of 18 U.S.C. § 1114; attempted
retaliation against a witness by murder, in violation of 18 U.S.C. § 1513(a)(1)(B);

attempted retaliation against a witness by bodily injury, in violation of 18 U.S.C.

§ 1513(b)(1); and use of mail and an interstate commerce facility with intent to

commit murder-for-hire, in violation of 18 U.S.C. § 1958. On appeal, Rudkin

argues that the district court erred by denying Rudkin’s motion for a judgment of

acquittal because the evidence at trial showed that Rudkin was entrapped by a

government informant. Rudkin argues that he was repeatedly enticed by the

government’s agents, Rudkin’s fellow inmates at Coleman Federal Correctional

Institution, because they sought substantial assistance reductions in their prison

sentences. Rudkin further argues that the informants took advantage of him

because they knew of the especial danger a former corrections officer faces in

prison, and thus, Rudkin played along with their ‘ridiculous’ plan for his own

safety.

      Ordinarily, when the jury rejects an entrapment defense, our review is

limited to “whether the evidence was sufficient for a reasonable jury to conclude

that the defendant was predisposed to take part in the illicit transaction,” and the

“jury’s verdict cannot be overturned if any reasonable construction of the evidence

would allow the jury to find the defendant guilty beyond a reasonable doubt.”

United States v. Brown, 43 F.3d 618, 622 (11th Cir. 1995). Review is de novo,

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and all facts and inferences are drawn in favor of the government. Id. However,

when a defendant fails to move for a judgment of acquittal at the close of the

evidence, reversal of the conviction is appropriate only to prevent a “manifest

miscarriage of justice.” United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.

2002). Under this standard, the evidence on a key element of the offense must be

“so tenuous that a conviction would be shocking.” Id.

      We have held that the determination of a witness’s credibility is “the

exclusive province of the jury.” United States v. Calderon, 127 F.3d 1314, 1325

(11th Cir. 1997), modified on other grounds, United States v. Toler, 144 F.3d 1423

(11th Cir. 1998). We may not review determinations made by the jury as to the

credibility of witness testimony unless such testimony is “incredible as a matter of

law.” Id. at 1325 (citing United States v. Hewitt, 663 F.2d 1381, 1385 (11th Cir.

1981)). Testimony is incredible as a matter of law only when it is “unbelievable

on its face” and relates to “facts that the witness physically could not have

possibly observed or events that could not have occurred under the laws of

nature.” Id. at 1325 (internal quotations and citation omitted).

      Entrapment is an affirmative defense. United States v. Quinn, 123 F.3d

1415, 1423 (11th Cir. 1997). A viable entrapment defense requires that: (1) there

is government inducement of the crime; and (2) the defendant was not predisposed

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to commit the crime before the inducement. United States v. Ryan, 289 F.3d 1339,

1343 (11th Cir. 2002). To constitute inducement, the government must do more

than contact the defendant or suggest that he commit a crime. Brown, 43 F.3d at

623. Rather, inducement by the government “requires an element of persuasion or

mild coercion.” Ryan, 289 F.3d at 1344. The government cannot be found

responsible for inducing the defendant to engage in a criminal act unless it

provides both the opportunity and something additional, such as coercion or

excessive pressure, or manipulation of a non-criminal motive. Brown, 43 F.3d at

623.

       Persuasion or mild coercion may be shown if [the] defendant
       demonstrates that he 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.

Ryan, 289 F.3d at 1344 (citations, quotations, and punctuation omitted).

       Once the defendant produces some evidence of inducement, the government

must prove, beyond a reasonable doubt, that the defendant was predisposed to

commit the offense. Id. at 1343. Predisposition is a fact-intensive and subjective

inquiry, requiring the jury to “consider the defendant’s readiness and willingness

to engage in the charged crime absent any contact with the government’s . . .

agents.” Brown, 43 F.3d at 624-25. Predisposition may be demonstrated by “the

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defendant’s ready commission of the charged crime [or] evidence that the

defendant was given opportunities to back out of illegal transactions but failed to

do so.” Id. at 625; see also United States v. Ventura, 936 F.2d 1228, 1231-32

(11th Cir. 1991) (holding that predisposition can be demonstrated if the defendant

engaged in the illegal activity, although he had the opportunity not to do so). In

addition, because the issue of predisposition is a fact-intensive query, the jury’s

assessment of the credibility and demeanor of the witnesses is a critical factor. See

Brown, 43 F.3d at 625.

      Rudkin, who failed to move for a judgment of acquittal at the close of all of

the evidence, has not demonstrated that the evidence relating to key elements of

the charged offenses was so tenuous that his convictions would be considered

shocking. The evidence adduced at trial showed that Rudkin initiated the contact

regarding the murder for hire and tenaciously pursued the contact that his fellow

inmates procured for him. Clearly the jury credited this testimony. For the above

stated reasons, we affirm Rudkin’s convictions.

      AFFIRMED.




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