                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________           FILED
                                                   U.S. COURT OF APPEALS
                                No. 09-11211         ELEVENTH CIRCUIT
                                                      FEBRUARY 5, 2010
                            Non-Argument Calendar
                                                          JOHN LEY
                          ________________________
                                                        ACTING CLERK

                      D. C. Docket No. 07-20995-CR-WJZ

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                      versus

ROBERT JOHNSON,

                                                              Defendant-Appellant.


                          ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                (February 5, 2010)

Before BARKETT, HULL and WILSON, Circuit Judges.

PER CURIAM:

     Robert Johnson appeals his conviction for using a facility of interstate
commerce to commit murder for hire, in violation of 18 U.S.C. § 1958. At trial,

the evidence showed that a confidential informant offered to complete a drug

transaction with Johnson, but conditioned the transaction on Johnson’s willingness

to kill a member of the informant’s supposed organization. Johnson repeatedly

agreed to commit the murder, stated that he planned to use an icepick to carry out

the murder, and declined an opportunity to back out of his agreement to commit

the murder. During the search incident to his arrest, police found a newspaper

article in his pocket describing a series of drug-related murders using a knife that

happened in 2002. After the arrest, police searched the car that Johnson rode in

and found a set of barbeque skewers in the floorboard of the front passenger seat.

      Johnson appeals (1) the sufficiency of the evidence, (2) the refusal of the

district court to give Johnson’s requested jury instruction on entrapment, and (3)

the admission into evidence of the newspaper article. After review of the record

and the parties’ briefs, we affirm.

I. Sufficiency of the Evidence

      We review de novo challenges to the sufficiency of the evidence, viewing

the evidence in the light most favorable to the government. United States v.

Futrell, 209 F.3d 1286, 1288 (11th Cir. 2000) (per curiam). Section 1958(a)

requires the government to prove that the defendant: (1) used or caused another to



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use any facility of interstate or foreign commerce; (2) with the intent that a murder

be committed; (3) as consideration for a promise or agreement to pay anything of

pecuniary value. 18 U.S.C. § 1958(a).

      Johnson argues that there was insufficient evidence as to his intent to murder

because no evidence linked him to the barbeque skewers that the government

asserted were the intended murder weapons. Johnson emphasizes that his

codefendant testified that the codefendant was alone when he purchased the

skewers. Johnson asserts that his plan was to steal the drug money without

committing the murder. Despite the numerous references to a firearm by a

government witness during the trial, Johnson emphasizes that no firearm was

seized.

      However, the evidence shows that Johnson repeatedly agreed to commit the

murder and planned out the murder. Furthermore, on the day that the murder was

to be carried out, Johnson put glue on his fingers to hide his fingerprints and

discussed using an ice pick, rather than a gun, to commit the murder. Barbeque

skewers were found in the floorboard of the front passenger seat, where Johnson

would sit when he rode in the car. Johnson also expressed that more important

than the money he would be paid for the murder was the money he would make in

the drug business, which he thought could only be accomplished through the



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murder. Therefore, the evidence was sufficient for the jury to conclude that

Johnson intended to commit murder for hire.

II. Entrapment Instruction

      Johnson argues that he was entitled to have the jury instructed on the defense

of entrapment because he produced sufficient evidence to support his theory of

defense. He asserts that the numerous phone calls to him from the confidential

informant indicated that he was being entrapped. Moreover, he notes that the jury

requested and was denied an instruction on entrapment.

      Entrapment is an affirmative defense, and before an entrapment jury

instruction may be issued, the defendant must show that the government induced

him into committing the crime with which he is charged. “A defendant is not

entitled to an entrapment instruction unless he first shows some evidence, more

than a scintilla, that government agents induced him to commit the offense.”

United States v. Chirinos, 112 F.3d 1089, 1102 (11th Cir. 1997) (citation and

quotation omitted). The sufficiency of this evidence is a question of law, and the

district court’s ruling on this legal question is subject to de novo review. United

States v. Gates, 967 F.2d 497, 499–500 (11th Cir. 1992) (per curiam) (citation and

quotation omitted).

      To show government inducement, the defendant must establish that the



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government engaged in “persuasion or mild coercion” and did not merely suggest

that he commit the crime. United States v. Quinn, 123 F.3d 1415, 1423 (11th Cir.

1997) (quotation and citation omitted). The defendant can show this by

“demonstrating that he had not favorably received the government plan, and the

government had 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.” Id. (omission in original) (quotation and citation omitted). When

evaluating whether the defendant satisfied his burden, we view the evidence “in the

light most favorable to the accused.” Id.

      Here, Johnson initiated the conversation about murder by informing the

confidential informant that he had recently committed a murder for hire in

Washington, D.C. At that point, the confidential informant mentioned that he had

a problem with a drug carrier, and Johnson stated that he could take care of it. In a

later conversation, the confidential informant later mentioned that he still had a

problem with the drug carrier and asked if Johnson could fix his problem, to which

Johnson replied, “No problem.” D.E. 137 at 162. Johnson and the confidential

informant spoke several times and discussed the preparations that needed to be

made for the murder, including transportation and the weapons that would be used.

Each time they spoke, the confidential informant merely suggested that Johnson



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commit the crime, and asked if he was still willing and ready to carry out the

murder. At one point, the confidential informant told him that if Johnson did not

want to go through with it, he did not have to murder the target. Johnson did not

show reluctance to carry out the murder. Consequently, Johnson did not present

sufficient evidence that the government persuaded or mildly coerced him into

committing a crime.

         The district court did not err in refusing to give an entrapment instruction

because the evidence at trial, including Johnson’s willingness to commit murder

and his decision to decline an opportunity to withdraw from the murder plot, did

not show that the government did more than suggest that Johnson commit the

crime.

III. Admission of Evidence

         Johnson argues that the district court erred by admitting the newspaper

article found in his pocket into evidence, even though such evidence was irrelevant

and highly prejudicial. He maintains that he was forced to explain a possible

connection to a murder where knives were used to painfully slice a woman and a

drug dealer to find where drugs were located, even though no evidence linked

Johnson with the skewers. He asserts that the evidence allowed the jury to

speculate that Johnson was involved in that murder, even though the government



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knew that he was incarcerated when the murder occurred.

      We review a district court’s decision not to exclude evidence as irrelevant or

prejudicial under Federal Rule of Evidence 403 for an abuse of discretion. United

States v. Tinoco, 304 F.3d 1088, 1120 (11th Cir. 2002) (citation omitted). Relevant

evidence may be excluded if “its probative value is substantially outweighed by the

danger of unfair prejudice.” Fed. R. Evid. 403. However, “Rule 403 is an

extraordinary remedy which the district court should invoke sparingly, and [t]he

balance . . . should be struck in favor of admissibility,” maximizing the probative

value of the evidence and minimizing its prejudicial impact. Tinoco, 304 F.3d at

1120 (quotation and citation omitted) (alterations in original). “The major function

of Rule 403 is limited to excluding matter of scant or cumulative probative force,

dragged in by the heels for the sake of its prejudicial effect.” United States v.

Cross, 928 F.2d 1030, 1048 (11th Cir. 1991) (quotation and citation omitted).

Even when the evidence is sufficient to support a verdict, non-constitutional errors

require reversal unless the government shows that the error did not have a

“substantial influence” on the verdict. United States v. Baker, 432 F.3d 1189,

1223–24 (11th Cir. 2005) (citations omitted).

      The article had probative value because it could have shown that Johnson

intended to use the same method of killing his target as the murderer in the article.



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While it may have suggested that Johnson committed the murder described in the

article, any possible error in admitting the newspaper article was harmless because

the evidence of Johnson’s guilt was overwhelming. Accordingly, we affirm

Johnson’s conviction.

      AFFIRMED.




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