                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 06-4538


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

JAMES WRIGHT,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:05-cr-00078-RDB)


Argued:   March 27, 2009                  Decided:   April 28, 2009


Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Danielle Tarin, WHITE & CASE, Washington, D.C., for
Appellant.   James Thomas Wallner, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Jonathan
M. Mastrangelo, WHITE & CASE, Washington, D.C., for Appellant.
Rod J. Rosenstein, United States Attorney, Baltimore, Maryland,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     This    case    arises       out   of    defendant’s        participation   in    a

controlled drug buy.          A jury found defendant guilty of one count

of   conspiracy       to     distribute          and    possess    with    intent     to

distribute 50 grams or more of cocaine base, 21 U.S.C. § 846, 21

U.S.C. § 841(a)(1) and (b)(1)(A); and one count of possession

with intent to distribute 50 grams or more of cocaine base, 21

U.S.C. § 841(a)(1) and (b)(1)(A), and aiding and abetting the

same,   18   U.S.C.    §     2.     Defendant          appeals    his   conviction    on

multiple grounds.          We affirm the judgment.



                                             I.

                                             A.

     On September 14, 2004, a group of law enforcement officers

met with Jeffrey Saffell, a confidential informant they had used

previously, and directed him to call defendant James Wright to

arrange a purchase of cocaine base.                    Saffell had known defendant

for two years and had obtained drugs from him in the past.                          Just

as he had done before, Saffell called defendant at home to set

up the buy.         In less than five minutes, Saffell arranged to

purchase drugs from defendant and agreed on a time that he would

pick up defendant.            The officers monitored and recorded this

phone call, but one of the officers subsequently lost the tape

recording.     The officer testified that he lost the tape while

                                             2
moving     when   he   was    transferred        back     to    headquarters       the    day

after the incident.           There is no allegation that any bad faith

was involved.

      Next, as is customary with a controlled buy, one of the

officers     searched        Saffell    to       ensure        that    he   was    not    in

possession of any contraband, money, or drug paraphernalia.                              The

officers then gave Saffell $2,000 to purchase the drugs, a scale

to weigh the drugs, and a vehicle to use for the operation.

Saffell was wired with a radio transmitter and the vehicle was

equipped with a video recorder and radio transmitter.

      Driving      the     government        vehicle,          Saffell      then    picked

defendant up at home, just as he had done during their prior

drug transactions.            Almost immediately upon entering the car,

defendant     asked    Saffell    “What’s        up?    What     you    trying     to    do?”

Saffell responded in slang that he was trying to get two ounces

of crack cocaine.            Without any hesitation or delay, defendant

borrowed Saffell’s phone to call one of his drug suppliers --

one   of   his    “sources”     or     “connects.”             The    source   agreed     to

provide the drugs, but said that it would take fifteen minutes.

      This source took too long, so defendant called another one

of his sources.          They arranged to meet, but the transaction was

further delayed because there were too many police officers in

the neighborhood where they had chosen to meet.                         While defendant

and Saffell were waiting for defendant’s sources, they drove

                                             3
around Baltimore to “burn time” and had an extensive, almost two

hour conversation about drug dealing, women, and other aspects

of their lives.    They also made two stops: one at a convenience

store to buy cigarettes and one at a truck driving business so

that defendant could pick up a job application.       Except for the

two stops, the entire conversation between defendant and Saffell

was recorded by the video camera in the car.

     Ultimately, defendant was successful in setting up the drug

buy with Dante Couther, someone whom Saffell recognized from a

previous   drug   transaction   arranged   by   defendant.      Saffell

testified that they picked Couther up in the car and gave him

the $2,000; they then drove Couther to another location where he

obtained the cocaine; and finally, Couther gave the cocaine to

defendant who quickly examined it and then handed it over to

Saffell.   The transaction was complete.

     Saffell dropped off defendant and Couther, and then met up

with the police officers who had been monitoring the operation.

He gave the officers the two ounces (approximately 55 grams) of

cocaine that he had purchased through defendant.             The police

immediately arrested defendant and Couther.

                                  B.

     A grand jury indicted defendant and Couther on one count of

conspiracy to distribute and possess with intent to distribute

50 grams or more of cocaine base, 21 U.S.C. § 846, 21 U.S.C. §

                                  4
841(a)(1) and (b)(1)(A); and one count of possession with intent

to distribute 50 grams or more of cocaine base, 21 U.S.C. §

841(a)(1) and (b)(1)(A), and aiding and abetting the same, 18

U.S.C. § 2.            Defendant was tried before a jury beginning on

September   12,        2005.     The   government’s        case-in-chief       included

testimony       from    Saffell     and    the     officers     who     arranged    and

monitored the controlled buy.                During Saffell’s testimony, the

government played portions of the videotape of the car ride.

The government also provided the jury with a transcript of the

video to use as an aid, but the transcript was not entered into

evidence.

       During     cross-examination,            defendant’s      counsel       elicited

testimony       from     various       witnesses      to     undermine       Saffell’s

credibility, including that he breached the plea agreement he

was    cooperating       under    by   participating       in   unauthorized        drug

transactions.      Defendant’s         counsel     also    pointed     out   that   the

officers    committed          several     minor    errors      in     executing     and

documenting this operation that deviated from police practice.

       At the close of the government’s case-in-chief defendant

made a motion for judgment of acquittal on three grounds: (1)

the    denial     of     due     process     premised      on    the     government’s

mishandling of various evidence, including the loss of the tape

of    Saffell’s    initial       conversation      with    defendant     and    alleged

inconsistencies in testimony; (2) the defense of entrapment; and

                                            5
(3)   the    sufficiency     of    the       evidence.        The    court       denied

defendant’s      motion.     Of   relevance      to   this    appeal,      the   court

rejected defendant’s entrapment claim because he had not met his

initial     burden   of    presenting        evidence    that       the    government

induced him to commit the crime.               In addition, the court ruled

that because defendant did not request a jury instruction on

entrapment, he could not argue entrapment to the jury.

      Defendant also moved that the jury be instructed that it

could draw an inference that the lost tape was adverse to the

government’s case.         Exercising its discretion, the court denied

the instruction because, as defendant conceded, there was no

evidence that the government had acted in bad faith when it lost

the tape.        Defendant did not testify and did not present any

additional evidence.

      The jury convicted defendant of both counts on September

15, 2005.     He was later sentenced to 240 months of imprisonment.

Defendant appeals his conviction.



                                         II.

      All   of   defendant’s      arguments     relate   in     some      way   to   the

defense of entrapment.            Entrapment is an affirmative defense

that consists of “two related elements: government inducement of

the crime, and a lack of predisposition on the part of the

defendant to engage in the criminal conduct.”                   Mathews v. United

                                         6
States, 485 U.S. 58, 62-63 (1988); see also United States v.

Hsu, 364 F.3d 192, 198 (4th Cir. 2004) (citing Mathews, 485 U.S.

at 62-63).       Here, defendant did not meet his initial burden of

producing      “more     than         a      scintilla        of    evidence”       that     the

government induced him to commit the crime. *                          See Hsu, 364 F.3d

at    200    (internal     quotation          marks       omitted);     see    also       United

States v. Sligh, 142 F.3d 761, 762 (4th Cir. 1998).

        Inducement     “is    a       term    of    art:      it    involves     elements    of

governmental overreaching and conduct sufficiently excessive to

implant a criminal design in the mind of an otherwise innocent

party.”       United States v. Daniel, 3 F.3d 775, 778 (4th Cir.

1993); see also Hsu, 364 F.3d at 198 (quoting Daniel, 3 F.3d at

778).       It requires “excessive behavior” by the government that

is    “so    inducive    to       a    reasonably         firm     person   as      likely   to

displace mens rea.”                United States v. DeVore, 423 F.2d 1069,

1072 (4th Cir. 1970); see also United States v. Osborne, 935

F.2d 32, 38 (4th Cir. 1991) (quoting DeVore, 423 F.2d at 1072).

        To support his claim of inducement, defendant first points

to the fact that the government initiated the drug transaction

and     solicited    him      to      broker       the     drug     deal.      It    is    well

established      that      this        evidence          is   not     sufficient      because

        *
       Defendant’s claim that he was entitled to present an
entrapment defense to the jury also fails because defendant did
not request a jury instruction on entrapment.



                                                7
inducement           “requires       more       than     mere        solicitation         by     the

government.”           Hsu, 364 F.3d at 198; see also United States v.

Ramos,    462        F.3d    329,    334    (4th       Cir.    2006);       United      States    v.

Velasquez, 802 F.2d 104, 106 (4th Cir. 1986).

      Next,      defendant          points       to     the    statements          Saffell     made

during    the        car    ride.         Specifically,          defendant         alleges     that

Saffell offered him money and sex with women to broker the deal,

played on defendant’s sympathy by stating that he needed money

for   his      daughter’s        mother,         invoked       his    love       for    defendant,

coached     defendant         on     how    to        complete       the    transaction,         and

assured defendant that no one had ever been caught with him.

Some forms of “persuasion or appeals to sympathy” can constitute

inducement, United States v. Squillacote, 221 F.3d 542, 569 (4th

Cir. 2000), but Saffell’s statements do not come close to the

types     of     pleading           and    persuasion          that        courts      have    held

constitute inducement.

      In fact, Saffell’s statements do not involve pleading or

persuasion at all.               They were not offered in response to any

reluctance       by        defendant       to    participate          in     the       buy.      The

statements all occurred after defendant had begun participating

in the transaction by calling one of his sources to supply the

drugs.         And    defendant       did       not    later    show       any    reluctance      to

participate when he and Saffell were waiting for his sources to

come through.              Defendant notes that he stated “once I get this

                                                  8
money together it’s game over,” and that he picked up a job

application while they were waiting, but these facts show at

most   that   defendant        was     going       to    seek    legitimate             employment

after completing this deal, which was already underway.

       Similarly, defendant claims that Saffell offered him money

to complete the deal, but payment for arranging a deal is normal

in the context of a drug buy and is not generally sufficient to

demonstrate inducement.              See, e.g., United States v. Diaz-Diaz,

433 F.3d 128, 136 (1st Cir. 2005); United States v. Glover, 153

F.3d 749, 754 (D.C. Cir. 1998).                     This case is thus a far cry

from   a   situation      where      the   government            had      to    make     multiple

requests    “to    overcome,      first,       petitioner’s            refusal,          then   his

evasiveness,      and      then      his   hesitancy            in     order        to    achieve

capitulation.”         Sherman    v.    United          States,      356       U.S.      369,   373

(1958).     See also Sligh, 142 F.3d at 763 (finding evidence of

inducement where the defendant “repeatedly ignored the agent’s

invitations       to      wrongdoing,”         but        “the       agent          nevertheless

persisted in her baiting of [the defendant]”).

       Indeed, courts have found inducement only where the pleas

were extreme: where an undercover agent pleaded that “unless his

‘blood brother’ would help him land a cocaine deal he would be

killed,” United States v. McLernon, 746 F.2d 1098, 1113 (6th

Cir.   1984);     where    a   government          informant         was       in   a    narcotics

addiction     treatment        program     and          preyed       on    the      defendant’s

                                               9
sympathy   by     repeatedly    requesting      narcotics   because    he   was

suffering from withdrawal, Sherman, 356 U.S. at 373; and where

an   undercover    informant    convinced    the   defendant   to     cooperate

based on “a tale of financial woes, the need to support a new

spouse,    and    terminal     cancer,    all    the   while   knowing      that

[defendant’s] sister recently had died of cancer,” United States

v. Nations, 764 F.2d 1073, 1080 (5th Cir. 1985).                      Saffell’s

statements simply do not rise to this level.

      In short, none of the statements to which defendant alludes

would “persuade an otherwise innocent person to commit a crime.”

Ramos, 462 F.3d at 334 (quoting Hsu, 364 F.3d at 200).                At best,

the statements amount to the sort of “mild persuasion” that we

have repeatedly held does not constitute inducement.                  See Hsu,

364 F.3d at 202 (holding that “passing mention” of “rewards” was

“mere banter” that at most amounted to mild persuasion); Daniel,

3 F.3d at 778-79 (holding that the government’s reminder “that

there was money to be made and promise to avoid arousing the

attention of the authorities” amounted to only mild persuasion);

see also Squillacote, 221 F.3d at 569 (recognizing that mild

persuasion is not inducement).           The district court was right to

observe that this case was “no more than any routine controlled

buy,” and that “if the evidence in this case is sufficient to

carry the burden of showing government inducement,” courts would

be “hard pressed” to find a case that does not meet the burden.

                                     10
                                           III.

        Defendant’s next arguments also relate to his entrapment

defense, but they are premised directly on the claim that the

district court should have imposed spoliation sanctions on the

government for losing the tape of Saffell’s initial phone call

to defendant.          First, defendant argues that the lost tape was

central to his entrapment defense and therefore the district

court    should   have      sanctioned      the    government     by    granting   his

motion for judgment of acquittal.

        This argument too must fail.               To begin with, the evidence

did not have “an exculpatory value that was apparent before the

evidence was [lost].”             California v. Trombetta, 467 U.S. 479,

489   (1984).          To   the   contrary,       Saffell’s    and     the   officer’s

testimony about the initial call -- that it was a controlled

call where Saffell arranged to purchase drugs from defendant --

shows    that,    in    all   likelihood,         the   tape   would    have   further

inculpated defendant.             Moreover, under Arizona v. Youngblood,

488 U.S. 51 (1988), “unless a criminal defendant can show bad

faith on the part of the police, failure to preserve potentially

useful evidence does not constitute a denial of due process of

law.”     Id. at 58.          Here, as defendant conceded, there was no

evidence that the government acted in bad faith.

        Because   defendant       cannot    meet    the   standard      required   for

reversal under Trombetta and Youngblood, he tries to import the

                                            11
civil standard for sanctions for spoliation of evidence.                            We

doubt this standard controls in the criminal context, but even

if it did, the severe sanction of an outright acquittal would

not be warranted.       In view of the absence of any bad faith on

the part of the government and in light of the fact that the

exculpatory value of the evidence was anything but apparent, the

district     court    cannot    be   said     to     have       abused     its   broad

discretion     by    failing    to    grant        the     significant       sanction

defendant seeks.       Defendant’s trial counsel recognized as much

when he stated: “where the issue has arisen in federal criminal

cases principally it is whether the Indictment should be thrown

out . . . .          You have to establish bad faith for that and

obviously nobody is arguing that.”            JA 423.

      Finally, defendant argues that the district court should

have at least sanctioned the government by granting his motion

for   an   adverse    inference      instruction.           The    district      court

denied defendant’s motion because there was no evidence that the

government    acted    in bad     faith.      This       was    not   an    abuse   of

discretion because without bad faith there was simply no basis

for an inference that the tape was adverse to the government.

Indeed, the very case upon which defendant explicitly based his

proposed   instruction     requires     “bad       faith       conduct”    before   an

adverse inference instruction can be given.                       United States v.

Wise, 221 F.3d 140, 156 (5th Cir. 2000).

                                       12
                            IV.

     For the foregoing reasons, the judgment of the district

court is affirmed.

                                                    AFFIRMED




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