                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0424n.06
                             Filed: June 20, 2007

                                          No. 05-4610

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )
v.                                                    )   ON APPEAL FROM THE
                                                      )   UNITED STATES DISTRICT
SHAWN R. SUMMERS,                                     )   COURT FOR THE SOUTHERN
                                                      )   DISTRICT OF OHIO
       Defendant-Appellant                            )


BEFORE:        KEITH, BATCHELDER, and MOORE, Circuit Judges.

       DAMON J. KEITH, Circuit Judge.                Defendant-Appellant Shawn R. Summers

(“Summers”) was charged and convicted by a jury for being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2) . On appeal, Summers argues that the

district court erred by not providing the jury with instructions for an entrapment defense. For the

following reasons, we AFFIRM the district court’s decision.

                                                I.

       In 1999, Summers was convicted of involuntary manslaughter and sentenced to six-years

imprisonment. In September 2004, Summers was released under the parole supervision of Kevin

Whaley (“Whaley”), a parole officer for the state of Ohio. Prior to Summers’s release, officers

within the parole authority were concerned about monitoring the future activities of Summers since

some evidence had developed regarding his involvement in a threat situation involving a jail
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employee. Upon his release, Whaley gave Summers the business card of Gary Hughes (“Hughes”)

for the purposes of obtaining possible employment, one of Summers’s parole requirements.

       Hughes operated a subcontracting business. However, unknown to Summers, Hughes was

also a paroled felon working as a confidential informant for the Bureau of Alcohol Tobacco and

Firearms (“ATF”) in the investigation of narcotics and firearm sales in Columbus, Ohio. In that

capacity, Hughes worked with Special Agent Daniel Ozbolt (“Ozbolt”), an undercover agent, who

used Hughes to meet people interested in purchasing drugs and guns. Whaley also supervised

Hughes, and was aware of his role as a confidential informant in the ATF investigation. While there

was a possibility of a legitimate work relationship between Hughes and Summers, it was Whaley’s

intent to supervise Summers through the cooperation of Hughes.

       After gaining employment with Hughes, Summers eventually quit because Hughes had not

paid him for completed work. Around this time, Summers told Hughes that he wanted to acquire

a snow plow. Hughes later set up an arrangement where Summers would receive a snow plow from

Ozbolt in exchange for firearms.1 On March 14, 2005, Summers and Ozbolt met to make the

exchange at an undercover residence. Hughes was also present. Summers indicated that the firearm

was in his vehicle. When Summers went to retrieve the firearm from his vehicle, Ozbolt activated

hidden video equipment in the residence to tape the exchange. Summers returned with a New

England Arms, 20-gauge shotgun, along with $100 cash to trade for the snow plow. During the

exchange, Summers spoke about future gun transactions, and how he had shown Hughes some



       1
        The record is unclear as to who initiated the negotiation or whose idea it was to trade the
snow plow for a firearm.
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German pistols (Lugers) in the past. Summers also talked about SKS (cheap rifles) and Davis

Industry pistols, and how he previously “unloaded” and “got rid” of some other firearms. When

Summers asked where Ozbolt obtained the snow plow, Ozbolt indicated that the snow plow was

stolen. After this discussion, Summers, Ozbolt, and Hughes proceeded outside and transfered the

snow plow to Summers’s vehicle.

        On March 31, 2005, Summers was indicted and charged with one count of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2). Summers

was subsequently arrested. On May 23, 2005, the trial began. After both sides presented their cases,

the defense requested an entrapment jury instruction. After some consideration, the district court

denied the request, finding that Summers had failed to present sufficient evidence that would permit

a jury to reasonably find that he was entrapped. On May 24, 2005, the jury returned a verdict finding

Summers guilty, and on September 22, 2005, the district court sentenced Summers to 63 months

imprisonment. On November 11, 2005, Summers filed a timely notice of appeal.

                                                   II

        “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. Williams, 952 F.2d 1504, 1512

(6th Cir. 1991). “A district court’s refusal to deliver a requested instruction is reversible only if that

instruction is (1) a correct statement of the law, (2) not substantially covered by the charge actually

delivered to the jury, and (3) concerns a point so important in the trial that the failure to give it

substantially impairs the defendant's defense.” Id. Moreover, “the defendant is entitled to an

entrapment instruction ‘whenever there is sufficient evidence from which a reasonable jury could
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find entrapment.’” United States v. Khalil, 279 F.3d 358, 364 (6th Cir. 2002) (quoting Mathews v.

United States, 485 U.S. 58, 62, (1988)).

       “A valid entrapment defense requires proof of two elements: (1) government inducement

of the crime, and (2) lack of predisposition on the part of the defendant to engage in the criminal

activity. To be entitled to an entrapment instruction, the defendant must come forward with evidence

to support both elements of the defense.” Id. (internal citations omitted). Our “central inquiry in

entrapment cases is whether law enforcement officials implanted a criminal design in the mind of

an otherwise law-abiding citizen or whether the government merely provided an opportunity to

commit a crime to one who was already predisposed to do so.” United States v. Pennell, 737 F.2d

521, 534 (6th Cir. 1984). Government agents do not entrap by merely presenting the opportunity to

engage in criminal activity. See United States v. Nelson, 922 F.2d 311, 317 (6th Cir. 1990).

       Here, because Summers has failed to present sufficient evidence from which a reasonable

jury could find entrapment, the district court did not improperly deny his request. In particular,

Summers presented insufficent evidence to prove his lack of predisposition to engage in criminal

activity.2 At trial, the Government produced a videotape recording of the exchange between

Summers and Ozbolt, the undercover agent. The recording, coupled with the testimony of Ozbolt,

established that Summers possessed a firearm (a 20-gauge shotgun) and traded it for a snow plow.


       2
         In determining predisposition, this Court has considered several factors relevant: (1) the
character or reputation of the defendant, including any prior criminal record; (2) whether the
suggestion of the criminal activity was initially made by the Government; (3) whether the defendant
was engaged in the criminal activity for profit; (4) whether the defendant evidenced reluctance to
commit the offense, overcome only by repeated Government inducement or persuasion; and (5) the
nature of the inducement or persuasion supplied by the Government. See Khalil, 279 F.3d at 365.
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The recording also showed Summers discussing the trafficking of firearms and the possibility of

future transactions. On tape, Summers also admitted showing Hughes, the confidential informant,

firearms (German Lugers) in the past, and that he previously “unloaded” and “got rid” of some

firearms. In reviewing this evidence, the district court concluded that “there [was] [in]sufficient

evidence which a jury could reasonably find that defendant was not predisposed to committing the

offense of possession of a firearm by a convicted felon[.]” (J.A. at 369).

       On appeal, Summers presents no evidence warranting the reversal of the district court’s

decision. It is undisputed that Summers had a criminal record as he was previously convicted of

involuntary manslaughter. See Khalil, 279 F.3d at 365 (noting that a defendant’s criminal history

is relevant when determining predisposition). Furthermore, even though the record does not clearly

establish who suggested the gun transaction, Summers’s own statements show that he engaged in

gun trafficking before, as well as his willingness to do so in the future. Likewise, Summers provides

no evidence of his reluctance to trade the firearm for the snow plow, nor does he proffer any

evidence that the transaction resulted only after repeated Government inducement or persuasion.

Even if we were to accept Summers’s proposition that Hughes, the Government’s confidential

informant, induced him by arranging the transaction, merely presenting Summers with an

opportunity to traffic guns he admitted possessing does not constitute entrapment. See Nelson, 922

F.2d at 317.

       The record, therefore, shows that Summers was predisposed—“an ‘unwary criminal’ who

readily availed himself of the opportunity to perpetrate the crime.” Khalil, 279 F.3d at 365.

Accordingly, “[w]here the evidence ‘clearly and unequivocally establishes that [the defendant] was
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predisposed,’ the district court is justified in denying an entrapment instruction.” Id. (quoting

Nelson, 922 F.2d at 317) (second alternation in original). Having found predisposition, we see no

need to address whether Summers presented sufficient evidence to support government inducement,

the first element of the entrapment defense.

                                               III

        For the aforementioned reasons, we AFFIRM the district court’s refusal to issue entrapment

instructions to the jury.
