                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 10a0597n.06

                                             No. 09-3191
                                                                                         FILED
                           UNITED STATES COURT OF APPEALS                            Sep 08, 2010
                                FOR THE SIXTH CIRCUIT                          LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                                 )
                                                          )
        Plaintiff-Appellee,                               )
                                                          )
v.                                                        )    ON APPEAL FROM THE UNITED
                                                          )    STATES DISTRICT COURT FOR
                                                          )    THE SOUTHERN DISTRICT OF
BUTCH RAY DIXON,                                          )    OHIO
                                                          )
        Defendant-Appellant.                              )


Before: BOGGS, SILER, and MOORE, Circuit Judges.

        SILER, Circuit Judge. Butch R. Dixon was convicted of attempting to possess with intent

to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and

sentenced to 120 months’ imprisonment. He appeals his conviction, claiming insufficiency of the

evidence and that the district court erred by admitting certain evidence and failing to instruct the jury

on entrapment. For the following reasons, we AFFIRM.

                I. FACTUAL AND PROCEDURAL BACKGROUND

        In 2008, Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) Agent Jeremy

Godsave, acting undercover and accompanied by an ATF confidential informant (“CI”), met with

Dixon’s cousin Kevin Tincher to propose a robbery of a sham drug stash house. Tincher arranged

a second meeting between himself, the CI, and Dixon. Two days later, all four men met at Tincher’s
No. 09-3191
United States v. Dixon

residence to discuss the robbery. Dixon indicated several times that he wished to conduct

surveillance on the stash house before committing the robbery.

       The robbery was to occur on February 1, 2008. During a telephone conversation that

morning, Dixon expressed hesitancy to go forward with the robbery, but told Godsave that “he

wouldn’t be up if he wasn’t serious about doing it.” He informed Godsave that he wanted to conduct

more surveillance and watch a “pick up” and “drop off” to “see how the operation happened.”

Following that phone conversation, Godsave and Dixon did not speak again until February 22, 2008,

although the CI contacted Dixon on February 14, 2008, to inquire as to the whereabouts of Tincher.

       On February 22, 2008, the agents devised a plan to set up a reverse controlled buy with

Dixon. The CI called Dixon and told him that they completed the robbery with the help of some

other people and that they got away with “nine bricks” and “twenty thousand bucks.” The CI asked

if Dixon could do anything with the cocaine, and Dixon said he could. The CI also asked Dixon

whether “20 a piece was good” (presumably asking if $20,000 per brick would be an appropriate

price). Dixon responded “yeah, that’s good.” The CI told Dixon he would call back later with more

information. Between the first and second phone calls, Dixon tried to call the CI three times. The

CI eventually called Dixon back and said he wanted to sell “six bricks” and he asked Dixon if Dixon

could front him some money for the cocaine. Dixon told the CI, “it won’t take long dude, trust me.”

       Soon thereafter, Godsave and the CI drove to Dixon’s apartment. The CI then made the final

call to Dixon, instructing Dixon that he and Godsave were waiting outside and that Dixon needed

to bring a bag in which to carry the cocaine. Seconds later, Dixon came outside with an empty duffle

bag and entered the car. Upon receiving the sham cocaine, Dixon stated, “you . . . did it, I can’t

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No. 09-3191
United States v. Dixon

believe it.” Dixon was immediately arrested by ATF agents. The agents found $2,400 in Dixon’s

pocket, as well as sixty tablets of Oxycodone and $5,000 in his apartment.

       Dixon was indicted on two counts: attempting to possess with intent to distribute at least five

kilograms of cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) (Count One); and

possession with intent to distribute Oxycodone, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C)

(Count Two). The jury found Dixon guilty of Count One and not guilty of Count Two. He was

sentenced to 120 months’ imprisonment, the mandatory minimum sentence.

                                      II. DISCUSSION

A. Sufficiency of the Evidence

       When the sufficiency of the evidence is challenged on appeal, we must determine “whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979). “To convict a person of ‘attempt’ to commit a drug offense, the

government must establish two essential elements: (1) the intent to engage in the proscribed criminal

activity, and (2) the commission of an overt act which constitutes a substantial step towards

commission of the proscribed criminal activity.” United States v. Pennyman, 889 F.2d 104, 106 (6th

Cir. 1989). A substantial step is “conduct strongly corroborative of the firmness of the defendant’s

criminal intent.” United States. v. Bilderbeck, 163 F.3d 971, 975 (6th Cir. 1999) (internal quotation

marks and citation omitted). However, “the substantial step [must] consist of objective acts that

mark the defendant’s conduct as criminal in nature.” Id.



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No. 09-3191
United States v. Dixon

       A rational juror could have concluded that Dixon took a substantial step toward the

commission of the offense. For example, there is evidence of negotiation between Dixon and the

CI: Dixon indicated he could do something with the cocaine; they talked about price; and they

discussed the amount of cocaine the CI would sell Dixon. Although the two men never agreed on

the amount that Dixon would give the CI up front, the CI said he was broke and that it would be okay

for Dixon to just bring him a little. Dixon appeared to agree to that when he brought $2,400 to the

location of the exchange. Moreover, Dixon appeared willing and ready to take possession of the

cocaine, evidenced by the fact that he carried an empty bag in which to place the cocaine. Under

Bilderbeck, a rational trier of fact could easily have found that Dixon’s acts constituted a substantial

step towards possession of the cocaine. See 163 F.3d at 976-77 (finding sufficient evidence of a

substantial step even though the defendant never agreed on a price or quantity of cocaine or

attempted to take possession of the cocaine).

       Dixon also contends that there was insufficient evidence to demonstrate his subjective intent

to possess the cocaine.     Specifically, he points to the fact that he only had $2,400 in his

possession—far short of the agreed-upon $120,000 for six kilograms. However, because the CI

simply asked Dixon to bring him “a little” bit of money, the fact that Dixon did not have the entire

$120,000 does not indicate he did not intend to take possession of the cocaine. Dixon’s own words

and actions constituted evidence of his subjective intent. Although Dixon is correct that his

statements expressed incredulity at the fact that the CI robbed the stash house, a jury could

reasonably infer his statements were expressions of surprise or astonishment, rather than literal

disbelief. Thus, his statements do not negate his other expressions of intent. Construing the

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No. 09-3191
United States v. Dixon

evidence in the light most favorable to the government, a reasonable juror could conclude that

Dixon’s statements and actions demonstrated his intent to possess and distribute cocaine.

B. Entrapment Instruction

       “We review jury instructions as a whole to determine whether they fairly and adequately

submitted the issues and applicable law to the jury.” United States v. Khalil, 279 F.3d 358, 364 (6th

Cir. 2002) (quoting United States v. Williams, 952 F.2d 1504, 1512 (6th Cir. 1991)). A defendant

is entitled to an entrapment instruction “whenever there is sufficient evidence from which a

reasonable jury could find entrapment.” Id. (quoting Mathews v. United States, 485 U.S. 58, 62

(1988)). The affirmative defense has two elements: “government inducement of the crime, and a

lack of predisposition on the part of the defendant to engage in the criminal conduct.” Mathews, 485

U.S. at 63. “To be entitled to an entrapment instruction, the defendant must come forward with

evidence to support both elements of the defense.” Khalil, 279 F.3d at 364.

       Even if Dixon presented sufficient evidence demonstrating his lack of predisposition to

commit the crime, he did not present sufficient evidence of government inducement. “In their zeal

to enforce the law, . . . Government agents may not originate a criminal design, implant in an

innocent person’s mind the disposition to commit a criminal act, and then induce commission of the

crime so that the Government may prosecute.” Jacobson v. United States, 503 U.S. 540, 548 (1992).

However, law enforcement agencies are entitled to use sting operations by which they give

defendants the opportunity to commit crime. See Sherman v. United States, 356 U.S. 369, 372

(1958). To show inducement, a defendant must present evidence of “repeated and persistent

solicitation” by the government. Sorrells v. United States, 287 U.S. 435, 441 (1932).

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No. 09-3191
United States v. Dixon

        “An ‘inducement’ consists of an ‘opportunity’ plus something else—typically, excessive

pressure by the government upon the defendant or the government’s taking advantage of an

alternative, non-criminal type of motive.” United States v. Gendron, 18 F.3d 955, 961 (1st Cir.

1994). Dixon has not presented evidence of “opportunity plus.” Even considering the government’s

behavior regarding the fictional stash house, the evidence still does not show government

inducement. Accordingly, the district court did not commit reversible error by denying Dixon’s

request for a jury instruction on entrapment.

C. Evidence Regarding Initial Meetings

        Dixon also argues that the district court erred by permitting the jury to hear recorded

conversations from the two January meetings, as well as testimony regarding those meetings,

contrary to Federal Rule of Evidence 404(b). We generally review the district court’s evidentiary

rulings for abuse of discretion. United States v. Johnson, 581 F.3d 320, 326 (6th Cir. 2009). We

have consistently recognized that background or res gestae evidence does not implicate Rule 404(b).

See, e.g., United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000). Res gestae evidence “consists

of those other acts that are inextricably intertwined with the charged offense or those acts, the telling

of which is necessary to complete the story of the charged offense.” Id. The recordings from the

January meetings are “inextricably intertwined” with the offense of attempting to possess with intent

to distribute cocaine. Accordingly, the district court did not err in concluding that the evidence was

admissible for a proper purpose.

        AFFIRMED.



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