
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1746                                    UNITED STATES,                                      Appellee,                                          v.                                     DARYL YOUNG,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               David  J. Van Dyke, by  Appointment of the  Court, with whom               __________________          Berman & Simmons, P.A. was on brief for appellant.          ______________________               Margaret  D. McGaughey,  Assistant  United States  Attorney,               ______________________          with  whom Jay P. McCloskey, United States Attorney, and Jonathan                     ________________                              ________          R.  Chapman, Assistant United States  Attorney, were on brief for          ___________          appellee.                                 ____________________                                    March 21, 1996                                 ____________________                    TORRUELLA,  Chief  Judge.    Defendant-appellant  Daryl                    TORRUELLA,  Chief  Judge.                                ____________          Young ("Young")  challenges his  criminal conviction, as  well as          his  resulting sentence  imposed  pursuant to  the United  States          Sentencing Guidelines  (U.S.S.G.).  Young was  convicted with co-          defendant Dennis Johnson ("Johnson") (1) of conspiring to possess          with intent to  distribute heroin  in violation of  21 U.S.C.              841(a)(1), 841(b)(1)(C) and 846, and (2)  of possession of heroin          with  intent  to  distribute it  in  violation  of  21 U.S.C.              841(a)(1) and 841(b)(1)(C).   After the close of evidence  in his          jury trial, he waived his right to trial by jury and submitted to          a verdict  by the court.  The district court found him guilty and          sentenced him to ninety-two  months' imprisonment, to be followed          by five years of supervised release.  We affirm both the judgment          and the sentence of the district court.                                      I.  BACKGROUND                                    I.  BACKGROUND                    In December 1994, Young  met Al Hendricks ("Hendricks")          while  the two men were enrolled in a drug detoxification program          at  a Maine hospital.   At trial, Young  testified that Hendricks          constantly talked about drugs, disrupting Young's therapy.  Young          and Hendricks continued  to communicate after Young  had left the          detoxification   program.     Shortly  thereafter,   starting  on          December 27,  Hendricks,  on  his own  initiative,  taped  twelve          conversations with Young.                    On the first tape,  Young told Hendricks he had  sent a          car to retrieve twenty-one grams of an unspecified substance, and          when Hendricks  said he  wanted some drugs,  Young and  Hendricks                                         -2-          agreed  on  a  meeting place.    On  January  5, 1995,  Hendricks          contacted the Drug Enforcement Agency (DEA).  On January 9, 1995,          Hendricks was  formally enrolled  as an informer.   Subsequently,          Hendricks and DEA Agent  Henry J. O'Donoghue ("Agent O'Donoghue")          arranged a deal  whereby Young  and Johnson would  travel to  the          Bronx to purchase heroin,  which they would then resell  to Agent          O'Donoghue (the "controlled  buy").  On  January 13, 1995,  Young          was  arrested at the  Greyhound Bus terminal  in Portland, Maine,          after he conveyed heroin to Agent O'Donoghue.                    Although  not  included in  the  charge  before it,  at          sentencing the  district court  included two other  quantities of          drugs under the rubric of relevant conduct pursuant to the United          States  Sentencing Commission's Sentencing Guidelines.  First, in          November  1994, Officer Brian  Higgins of the  Maine State Police          found Young unconscious in Machias, Maine, in an automobile owned          by  Johnson,  and in  possession  of approximately  11  ounces of          cocaine.   The district court took this cocaine into account (the          "Machias cocaine")  in computing Young's sentence  in the instant          conviction.  Additionally, Johnson  testified that Young had sold          him heroin for almost  two years previous to Young's  January 13,          1995,  arrest.   The district  court also  took this  heroin into          account (the  "Johnson heroin") in computing  Young's sentence in          the instant conviction.                    At trial, after the  district court refused to instruct          the jury on the defense of entrapment, Young  waived his right to                                         -3-          a jury trial,  submitted to a verdict of  the district court, and          was convicted and sentenced.                                   II.  DISCUSSION                                   II.  DISCUSSION                       A.  The Requested Entrapment Instruction                       A.  The Requested Entrapment Instruction                    Young  challenges  the  district  court's   refusal  to          instruct the jury on  his defense of entrapment.   "[A] defendant          is  entitled  to a  jury instruction  on  entrapment if  there is          record  evidence  which  fairly   supports  the  claims  of  both          government  inducement  of  the  crime and  defendant's  lack  of          predisposition to engage in it."  United States v. Rodr guez, 858                                            _____________    _________          F.2d  809,  814 (1st  Cir.  1988).   The record  must  show "hard          evidence," which if believed by a rational juror,  "would suffice          to  create a  reasonable doubt  as to  whether  government actors          induced the defendant to perform  a criminal act that he was  not          predisposed  to commit."  Id.   The existence  or nonexistence of                                    ___          the required quantity of evidence in a given case is  a matter of          law for  the  court, see  id.  at 809,  and  thus our  review  is                               ___  ___          plenary, reading the record evidence  in the light most favorable          to  the defense.  See United States  v. Tejeda, 974 F.2d 210, 217                            ___ _____________     ______          (1st Cir. 1992);  Rodr guez, 858 F.2d  at 814.  Once  a defendant                            _________          carries  his or her entry-level burden,  the government may prove          the absence of  entrapment by showing, beyond a reasonable doubt,          "that the defendant was disposed to commit the criminal act prior          to  being first  approached by  government agents."   Gifford, 17                                                                _______          F.3d 462, 468 (1st Cir. 1994).                                         -4-                    We conclude  that even assuming all  of Hendricks' acts          could be  considered government conduct,1 the  district court did          not err in finding a  lack of "hard evidence," which if  believed          by a rational juror,  would suffice to create a  reasonable doubt          as  to whether Hendricks committed acts that would meet the legal          definition  of entrapment.2  To be entitled to the instruction on          entrapment,  a  defendant  must   show  hard  evidence  that,  if          believed,  would  lead  a  reasonable  person  to  the  requisite          conclusion; it  is not enough that there  be doubt in the absence          of evidence  on a given point.   See United States  v. Pratt, 913                                           ___ _____________     _____          F.2d 982, 988 (1st Cir. 1990); Rodr guez, 858 F.2d at 814.  As we                                         _________          have previously stated,                      [i]f an accused suggests  that entrapment                      belongs in the case, it  seems not unfair                                        ____________________          1   Young argues that  all of Hendricks'  acts, dating from their          first  meeting,  should  come  under  the  lens  of  entrapment's          examination for improper government  action that contaminated the          prosecution.   Young asserts that Hendricks  intended to become a          government agent  from the  beginning, when he  befriended Young,          and  thus all of Hendricks'  actions constitute the  actions of a          government  agent.  Relying on Sherman v. United States, 356 U.S.                                         _______    _____________          369  (1958), Young contends that even though there is no "private          entrapment" defense,  see United States v. Gendron,  18 F.3d 955,                                ___ _____________    _______          962  (1st Cir.  1994) (collecting  cases), because  Hendricks may          well  have began his association  with Young with  a view towards          turning   government   informant,   the   government   "ratified"          Hendricks' acts, including those committed before Hendricks first          contacted O'Donoghue.             Because we find no  hard evidence of inducement even  those of          Hendricks'  acts that pre-date  his enrollment  with the  DEA, we          assume the  validity of  Young's  novel theory  of entrapment  by          government ratification without ruling on it.          2  We do not consider this definition with respect to O'Donoghue,          because  the  record,   including  Young's  testimony  (described          infra),  shows that  O'Donoghue  had minimal  contact with  Young          _____          before the controlled buy that led to this appeal.                                         -5-                      to expect  him to  point to a  modicum of                      evidence  supportive  of his  suggestion.                      The alternative --  that the  prosecution                      be forced to disprove entrapment in every                      case -- seems plainly unacceptable.          Id. at 813-14  (citations omitted).   In the entrapment  context,          ___          inducement must be such that it implicates concerns of government          "overreaching," see  Gendron, 18 F.3d at  962; solicitation alone                          ___  _______          does not suffice as inducement,  see id. at 961.  This  court has                                           ___ ___          previously stated that                       [a]n improper "inducement," however, goes                      beyond providing an ordinary "opportunity                      to  commit a  crime."    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.          See id. (citation omitted) (emphasis  in original).  Examples  of          ___ ___          improper  "inducement"  include  intimidation,   threats,  dogged          insistence,   and  "arm-twisting   based   on   need,   sympathy,          friendship,  or the like."  United  States v. Gifford, 17 F.3d at                                      ______________    _______          468; see also Gendron, 18 F.3d at 961.               ________ _______                    The  district  court concluded  that  Young essentially          testified  that  there was  no inducement  on  the part  of Agent          O'Donoghue.   Reviewing  the record,  we agree.   In  response to          repeated questioning on cross-examination,  Young failed to point          to  any  statement  or  action  of  Agent O'Donoghue  that  Young          considered inducement.   In  fact, by  his  own testimony,  Young          pinpointed  the  time  of  any  inducement to  his  contact  with          Hendricks  in the  hospital.   With  respect to  Hendricks, Young                                         -6-          attempted  to depict  a pattern of  inducement.   Young testified          that  Hendricks  allegedly  induced  him  to  sell  narcotics  by          befriending him  while both were  in treatment,  by telling  "war          stories,"  by "com[ing] into [his]  hospital room," and by saying          that he could arrange for Young to obtain drugs.  Young testified          that Hendricks  allegedly led him  into selling drugs  by telling          Young "to trust him," and that "[b]y just being there," Hendricks          "was the answer to everything."                    Even  viewing the  record most  favorably to  Young, we          find  that the district court  properly found that  Young did not          produce   "hard   evidence"   that   Hendricks   used   coercion,          intimidation  or   any  promise   of  benefits  other   than  the          opportunity to commit the crime.  Young's own trial testimony was          that  Hendricks'  actions  amounted   to  talking  about   drugs,          referring  to  the  availability  of  drugs,  and  arranging  the          purchase  with  O'Donoghue.   There  was  no  testimony or  other          evidence, let alone "hard evidence," of coercion or intimidation.          Cf., e.g.,  United States v. Becerra, 992 F.2d 960, 963 (9th Cir.          ___  ____   _____________    _______          1993) (describing government officials who used threats against a          defendant's family);  United States v.  Groll, 992 F.2d  755, 759                                _____________     _____          (7th Cir. 1993) (describing government officials who called every          day and "began threatening" the defendant).  Unlike in Sherman v.                                                                 _______          United  States, 356 U.S. 369  (1958), there was  no evidence that          ______________          Hendricks feigned physical suffering due  to withdrawal symptoms.          Id.  at 373.   While  there was  testimony that  Hendricks showed          ___          Young his track marks,  there was no testimony by  Young, nor any                                         -7-          other  evidence, of any attempt  to attract sympathy  in order to          obtain  drugs  for Hendricks  or  O'Donoghue.   With  respect  to          coercion  or emotional appeals to sympathy, then, we find no hard          evidence  in the record regarding  the instant offense that would          satisfy the required showing of inducement, that is, "opportunity          plus something else."                    Similarly, while  there have been cases  in which pleas          based  upon  a  defendant's  friendship with  an  informant  have          justified a finding of entrapment,  see, e.g., Sorrells v. United                                              ___  ____  ________    ______          States, 287  U.S. 435,  440-41  (1932) (using  sentiment of  "one          ______          former  war  buddy  . .  .  for  another"  to  get liquor  during          prohibition),  there was no such  evidence here.   There was hard          evidence, in the form of Young's testimony, from which a rational          jury  could have inferred  a friendship with  Hendricks, albeit a          recently established one.  There was no testimony from Young, nor          was there any other  hard evidence, that Hendricks made  any plea          based  upon any  degree  of  friendship  that  the  two  men  had          established  during  their  brief acquaintanceship,  which  Young          testified began on or about December 23, 1994, to encourage Young          to do  anything that he  was not  predisposed to do.   We  cannot          find, and Young does not cite authority for, the proposition that          friendship, without  a plea predicated upon  friendship, suffices          legally as inducement; indeed case law suggests that, as a matter          of  law,  friendship   alone  does   not  constitute   sufficient          inducement.  See,  e.g., United  States v. Ford,  918 F.2d  1343,                       ___   ____  ______________    ____          1348  (8th Cir.  1990) (concluding  that, "as  a matter  of law,"                                         -8-          evidence that a defendant thought he or she was doing a favor for          a  friend by selling that  friend illegal drugs  does not suffice          for showing inducement to obtain  entrapment instruction); United                                                                     ______          States v. Jones, 487 F.2d 676, 678 (9th Cir. 1973) ("[f]riendship          ______    _____          is  not,  by  itself,   a  sufficient  inducement  to  constitute          entrapment as a matter of law").  The sole  evidence pertinent to          how  Hendricks purportedly  managed  to "lead"  Young to  selling          drugs  to Agent  O'Donoghue is  Young's testimony  that Hendricks          said "I have a  friend that wants heroin and I  will set you up."          There is no accompanying allegation of coercion, threat, or  plea          based upon friendship or sympathy that would constitute more than          mere  opportunity,   which  alone  cannot   suffice  legally   as          inducement.  See Gendron, 18 F.3d at 961.3                       ___ _______                    Furthermore,  while  Young   contends  that   Hendricks          disrupted his drug treatment  program by bringing up the  subject          of  drugs in  conversation,  we can  find  no authority  for  the          proposition  that  merely affording  the opportunity  for illegal          activity can qualify legally as  inducement simply because of the          context, were Young to make such an argument.  In fact, authority                                        ____________________          3    Accordingly, we  need not  consider the  additional required          finding  of predisposition.    However, we  note that  Hendricks'          first tape, from  December 27, 1994, contains strong  evidence of          Young's interest in  providing drugs to  Hendricks.  Without  any          request  from Hendricks,  Young brings  up the  subject of  a car          "going in  five minutes" that is  going to obtain 21  grams of an          unidentified  substance that  would be "enough  for all  of you."          What hard evidence existed regarding predisposition suggests that          not  only did Hendricks not  offer more than  an opportunity, but          also,  in fact, that Young  may already have  been predisposed to          sell  or provide  drugs  to  others,  and  that  Young  may  have          initiated the  component of his relationship  with Hendricks that          involved the buying and selling of illegal drugs.                                         -9-          exists for the  proposition that context  is irrelevant where  an          informant's action was "nothing more than a solicitation to act."          United  States v.  Singh,  54 F.3d  1182,  1189 (4th  Cir.  1995)          ______________     _____          (finding  no  inducement  where   former  patient,  acting  as  a          government agent,  convinced physician to  write her prescription          for pharmaceuticals, forming the  factual basis of his conviction          for distributing  controlled substances outside the  scope of his          medical practice for other  than legitimate medical purposes, and          for falsifying  prescription information);  see United  States v.                                                      ___ ______________          Mendoza-Salgado, 964 F.2d 993, 1004 (10th Cir. 1992) (finding  no          _______________          inducement and rejecting defendant's self-portrayal  as "gullible          alcoholic," finding  dispositive that the  record indicated  that          "the government informer  did no more than advertise [an Agent's]          interest  in purchasing  cocaine" and  setting up  the controlled          buy).   By contrast, the  informant in Sherman,  a case on  which                                                 _______          Young relies heavily, repeatedly  sought drugs from the defendant          in a treatment context, supplementing his recurring requests with          claims of physical discomfort from withdrawal.  Sherman, 356 U.S.                                                          _______          at 371 (noting that the defendant  there tried to avoid the issue          of  illegal  drugs "from  the first,"  and  "[n]ot until  after a          number  of  repetitions  of   the  request,  predicated  on  [the          informant's]   presumed   suffering,   did   petitioner   finally          acquiesce").                    Ultimately,  while  Young   testified  that   Hendricks          befriended  him and  brought up  the subject  of drugs,  he never          testified  that  Hendricks  used  this  friendship  as   leverage                                         -10-          constituting   the  "opportunity  plus  something  else"  legally          required for a  finding of  inducement, see Gendron,  18 F.3d  at                                                  ___ _______          961.  The December 27 recording, in fact, shows that Young was in          the process of obtaining drugs before offering them to his friend          Hendricks.   In  fact, at  trial,  Young provided  the  following          summary of how Hendricks "led" him into selling drugs: "[b]y just          being there, he was the answer to everything."  Assuming, without          concluding,  that Hendricks was a government agent, we might find          it distasteful that  a government agent was  even present talking          about drugs in  a detoxification  center.  But  this circuit  has          never  held, and we  do not now  hold, that the  context in which          government conduct  occurs waives the defendant's  burden to show          hard  evidence of  legally  sufficient inducement.   Without  the          requisite evidence, as here, we conclude that  the district court          properly  found  that  Young was  not  entitled  to  have a  jury          consider  his entrapment  defense,  and therefore  we affirm  the          district court's decision.                                   B.  The Sentence                                   B.  The Sentence                    At sentencing, the district  court found the total drug          quantity  attributable  to  Young  to  be  equivalent  to  284.41          kilograms  of marijuana, resulting in a Base Offense Level of 26.          See U.S.S.G.   2D1.1(c)(7).  In making this finding, the District          ___          Court found three distinct quantities of illicit drugs: (1) 17.96          grams of heroin involved  in the controlled buy which  formed the          predicate  for  the  prosecution  (translating  to  17.96  kg  of          marijuana  equivalent); (2)  453  grams of  cocaine  representing                                         -11-          drugs found on the defendant upon his arrest in Machias, Maine in          November   of  1994   (translating  to   90.6  kg   of  marijuana          equivalent);  and (3) 176 grams of  heroin representing drugs the          district court found that  Young had sold to Johnson  over a two-          year period preceding the subject prosecution (translating to 176          kg of marijuana equivalent).                    On appeal, Young contends that the district court erred          by including both the  Machias cocaine and the Johnson  heroin in          calculating his sentence.   According to Young, the circumstances          surrounding the Machias cocaine and the Johnson heroin should not          have been  factored into "relevant  conduct" for the  purposes of          his sentence,  because sufficient nexus with  his charged conduct          did not exist.                    To bring  uncharged conduct  into play, the  government          must  show a sufficient nexus between the conduct and the offense          of conviction by  a preponderance  of the evidence.   See  United                                                                ___  ______          States  v. Sklar, 920  F.2d 107, 110  (1st Cir. 1990).   Absent a          ______     _____          mistake  of  law, we  review only  for  clear error  the district          court's conclusions that drugs  were part of the same  conduct or          scheme or plan.  See id. at 110-11.                           ___ ___                    Under  the  Sentencing  Guidelines, "relevant  conduct"          includes all acts "that  were part of the same course  of conduct          or  common  scheme  or  plan  as  the offense  of  conviction[.]"          U.S.S.G.   1B1.3.  For two or more offenses to be considered part          of a common scheme or plan, "they must be substantially connected          to each  other by  at least  one  common factor,  such as  common                                         -12-          victims,  common accomplices,  common purpose,  or similar  modus                                                                      _____          operandi."  U.S.S.G.   1B1.3, comment. (n.9(A)).          ________                    We  conclude  that  the circumstances  surrounding  the          Machias  cocaine and the charged  offense4 were part  of a common          scheme or plan because  they evince at least two  common factors:          a common source for the drugs in New York and common transport of          the drugs  to Maine.  In his appellate brief, Young concedes that          he obtained both the  Machias cocaine and the heroin  involved in          the  charged   offense  from  the   same  source  in   New  York.          Additionally, as  in the  charged offense, he  apparently brought          the drugs from  there to  Maine.  Furthermore,  at trial,  agents          testified  that a subsequent search  of his house  turned up used          and unused syringes,  several sets of  scales covered with  white          powder, marijuana, pills and other drug residue.  Thus, there was          evidence tending to tie the circumstances surrounding the Machias          cocaine  and the  offense conduct  together as  part of  a common          scheme whereby Young conveyed drugs from his supplier in New York          to buyers in Maine.5                                        ____________________          4  Because we find  proper the district court's inclusion of  the          Machias cocaine,  we do not  consider whether the  Johnson heroin          was correctly included,  since even  if the  Johnson heroin  were          excluded,  it would  not  change Young's  base  offense level  or          sentencing  range.   "[W]hen correction  of  a finding  would not          change  the applicable  offense  level or  affect the  sentencing          range, any error therein would  necessarily be harmless."  United                                                                     ______          States v. Bradley, 917 F.2d 601, 603 (1st Cir. 1990).          ______    _______          5  Since we find that the Machias cocaine and the heroin involved          in the  charged offense  form part  of a  common scheme  or plan,          according  to  U.S.S.G.    1B1.3,  these drug  quantities  may be          included together under the rubric of relevant conduct.   Because            1B1.3 requires a finding of either a "common scheme or plan" or                                                                         __          the  "same course of conduct," we do not consider Young's further                                         -13-                    Additionally,  Young  argues that  the  offense conduct          involved selling cocaine to Agent O'Donoghue for expected further          distribution  in  Canada,  while  assuming that  if  the  Machias          cocaine was to be  resold, it would presumably be  sold in Maine.          Without concluding that different destinations require a  finding          that the incidents cannot be part  of a common scheme or plan, we          find this  argument unconvincing  given that the  offense conduct          involved selling  drugs in  Portland, Maine, and  that apparently          Agent O'Donoghue was to  handle further distribution.  Certainly,          we do not believe that it was clear error for  the district court          to find a common scheme on these facts.                    Furthermore,  while Young  testified  that the  Machias          cocaine  was all  for his  own use,  the district  court  was not          required to believe him.   See United States v. Brewster, 1  F.3d                                     ___ _____________    ________          51,  54 (1st Cir. 1993).  In reviewing sentencing proceedings, as          elsewhere, we  must be  mindful that  "credibility determinations          lie primarily within the realm of the district court," id. at 55,                                                                 ___          and where, as here, "there are two plausible views of the record,          the  sentencing court's  adoption  of  one  such view  cannot  be          clearly  erroneous,"  id. (citing  United States v.  St. Cyr, 977                                ___          _____________     _______          F.2d  698, 701 (1st Cir. 1992)).  The district court's conclusion          was particularly plausible here,  where the court heard testimony                                        ____________________          contention  that  because  the  events  surrounding  the  Machias          cocaine  were  separated  in time  from  the  offense  conduct by          Young's self-admission  into a  detoxification center, these  two          incidents cannot be considered part of the same course of conduct          under U.S.S.G.    1B1.3(a)(2), because they cannot  be considered          part of a single  episode, spree, or ongoing series  of offenses.          See U.S.S.G. 1B1.3, comment. (n.9(B)).                                         -14-          from Maine DEA Supervisor Kenneth MacMaster that a typical dosage          of cocaine for  personal use ranges from  one-tenth to one-fourth          of  a gram, and that a total of  453 grams of cocaine were seized          from  the car, along with scales and other paraphernalia found at          Young's home, suggesting further distribution.                                         -15-                                      CONCLUSION                                      CONCLUSION                      As a  result of  the foregoing,  the judgment  of the          district court is affirmed.                            affirmed                            ________                                         -16-
