
USCA1 Opinion

	




          October 14, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 91-2309                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   DANIEL L. REED,                                Defendant, Appellant.                                 ___________________                                     ERRATA SHEET               The  opinion of  this Court  issued on  October 5,  1992, is          amended as follows:               On cover sheet, the  judge below should be listed  as "[Hon.          D.  Brock Hornby, U.S.  District Judge]"  instead of  "[Hon. Gene                            ____________________          Carter, U.S. District Judge]".                  ___________________        October 5, 1992          ____________________        No. 91-2309                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   DANIEL L. REED,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Roderick B. O'Connor, by Appointment of the Court, for appellant.            ____________________            Margaret  D. McGaughey,  Assistant  United  States Attorney,  with            ______________________        whom Richard S. Cohen,  United States Attorney, and Jay  P. McCloskey,             ________________                               _________________        Assistant United States Attorney, were on brief for the United States.                                 ____________________                                 ____________________                      CAMPBELL,  Senior  Circuit Judge.   Daniel  L. Reed                                 _____________________            appeals from a  judgment of conviction entered in  the United            States District Court  for the  District of Maine.   After  a            jury trial, Reed  was convicted  on August 21,  1991, of  two            counts  of knowingly  and intentionally  distributing cocaine            within 1,000 feet  of a school in  violation of 21 U.S.C.                841(a)(1) and 860.                        Reed  was shown  to have  participated in  two drug            transactions at  a motel in Damariscotta,  Maine, in February            1991.   On both occasions,  Reed was invited  to the motel by            his acquaintance  Darryl Witham  to meet a  potential cocaine            purchaser.  Unbeknownst to Reed,  Mr. Witham was a government            informant and the  purported buyer was  actually an agent  of            the  Maine  Bureau  of  Intergovernmental   Drug  Enforcement            (BIDE).  On  both occasions  Reed arrived at  the motel  with            packages containing  cocaine,  transferred them  to the  BIDE            agent,  and accepted cash in  return.  At  trial, Reed raised            the   defense  of   entrapment.     He  conceded   to  having            participated in the cocaine transactions, but argued that the            government, through  Witham, induced  him to  participate and            that he sold the drugs only as an agent of Witham.                      Appellant raises three issues on appeal.  First, he            argues  that  it was  error for  the  district court  to have            allowed it  to be brought out at trial that he had previously            been convicted for  the possession of cocaine.  The substance                                         -3-            of his contention is  that a prior conviction  for possession            is not relevant to a defendant's predisposition to distribute            cocaine, and  is mere  character evidence  barred by  Fed. R.            Evid. 404(b).1                      We need  not reach  the merits of  this contention,            however, because appellant failed to make timely objection to            the  admission of  this  evidence.   Indeed, Reed's  pretrial            motion in limine effectively waived objection to  the fact of                   __ ______            his prior conviction for cocaine possession.  In that motion,            Reed  moved  "to  limit   any  inquiry  regarding  his  prior            convictions to the  fact that he was convicted  of possession            of cocaine in 1990 and to exclude any details beyond the mere            fact of that conviction and the date of the offense charged."            Defendant's  Motion  In Limine  to  Limit  Evidence of  Prior            Convictions  at 1.  At the  pretrial hearing, defense counsel            merely argued  that  admitting the  details surrounding  that            conviction would  raise "the danger  of litigating collateral            issues;"  counsel also argued that "we have to apply Rule 403                                            ____________________            1.  Fed. R. Evid. 404(b) provided:                                   Evidence of other crimes, wrongs, or acts                      is not admissible  to prove the character                      of a  person in  order to show  action in                      conformity therewith.   It may,  however,                      be admissible for other purposes, such as                      proof  of  motive,  opportunity,  intent,                      preparation,  plan,  knowledge, identity,                      or absence of mistake or accident.            (Effective prior to Dec. 1, 1991).                                         -4-            [not 404(b)] to the  evidence here and look at  the probative            value versus  the potential prejudice here  in litigating the            underlying issues."  Transcript of  Hearing on Motions at 11-            12.2     The   district  court  denied   defendant's  motion,            reasoning that "where entrapment is  raised as an issue, that            the  inquiry [into the details  of a prior  conviction] is no            longer  collateral but rather a  direct matter of concern for            the  fact finder."  Transcript  of Hearing on  Motions at 22.            Because defendant's  predisposition  is at  issue, the  judge            continued, "it really is the underlying conduct, perhaps more            than the  conviction itself,  which becomes a  material issue            concerning  the  previous  offense rather  than  collateral."            Transcript of Hearing on Motions at 23.                      The  police officer thereafter  testified at trial,            without objection, to having  arrested Reed on the possession            charge  and to  the  details mentioned  in  note 2.    Reed's            girlfriend,  a defense  witness, testified  without objection            that  Reed  refused Witham's  invitations  to  deal in  drugs            because  Reed   was  on  probation  for  cocaine  possession.            Finally,  Reed   himself  testified  on  direct   and  cross-                                            ____________________            2.  The government responded that it only intended to present            testimony as to "the fact that he was arrested, stopped while            driving  a vehicle in Kittery,  Maine; that he  and two other            people were in the  vehicle; and that approximately an  ounce            of cocaine  was found in  the front  seat; [that] he  was the            driver of the  vehicle; and  that he subsequently  pled to  a            charge of possession of cocaine."  At trial, the government's            evidence about  the conviction, elicited  through the  police            officer's testimony, was in fact limited to these matters.                                         -5-            examination about the circumstances of his arrest, conviction            and subsequent  probation for possession of  cocaine in 1990,            contending that his being on  probation for this offense made            him particularly reluctant to deal in drugs in 1991, the time            of the present offenses.                       Reed's willingness, stated in the motion in limine,                                                               __ ______            to allow evidence  of the fact of his  conviction in 1990 for            cocaine possession is fatal to his present  argument that all            evidence of  that conviction should have  been excluded under            Rule  404(b).  See United States v. Vest, 842 F.2d 1319, 1325                           ___ _____________    ____            (1st  Cir.), cert. denied, 488  U.S. 965 (1988).   Neither in                         ____________            the motion in limine nor later did he make  any such argument                       __ ______            below.  See Fed. R. Evid. 103(a).  In the motion in limine he                    ___                                      __ ______            only requested exclusion of the details surrounding the prior                                            _______            offense, and  was silent even  as to  this limited  objection            when those details were later elicited.  Indeed, not only did            the motion in limine effectively waive objection  to the fact                       __ ______            of  conviction, but we doubt the motion in limine sufficed by                                                    __ ______            itself to preserve the  question of the admissibility  of the            details for appeal.   A motion in limine  without subsequent,                                           __ ______            contemporaneous  objection at  trial,  or  other factors  not            present  here,  is  ordinarily  insufficient to  preserve  an            evidentiary ruling  for appeal.   See  Fed. R.  Evid. 103(a);                                              ___            Vest,  842 F.2d at 1325;  United States v.  Griffin, 818 F.2d            ____                      _____________     _______            97,  105  (1st Cir.),  cert.  denied,  484  U.S.  844  (1987)                                   _____________                                         -6-            (holding  that  "to raise  and preserve  for review  [such a]            claim .  . .  a  party must  obtain  the order  admitting  or            excluding the controversial evidence in the actual setting of            the trial."); see  also McEwen  v. City of  Norman, 926  F.2d                          _________ ______     _______________            1539,  1544 (10th Cir. 1991) ("A party whose motion in limine            has been overruled must nevertheless object when the error he            sought to prevent by his motion occurs at trial."); Wilson v.                                                                ______            Waggener, 837 F.2d 220,  222 (5th Cir. 1988) ("A  party whose            ________            motion in limine is  overruled must renew his objection  when            the evidence is about to be introduced at trial.").                      Even  assuming we were  to hold that  the motion in                                                                       __            limine  preserved the  objections  stated therein,  appellant            ______            would  fail, as  the objection was  presented solely  on Rule            4033 grounds,  i.e., prejudice, confusion and  waste of time.            Given that  Reed effectively waived any  objection to placing            before  the  jury  the  actual  fact  of  his  prior  cocaine            conviction, the  court clearly  did not abuse  its discretion            under Rule 403 in refusing to exclude material details of the            prior  offense, such as the amount of cocaine.  These details                                            ____________________            3.  Fed. R. Evid. 403 provides:                      Although   relevant,   evidence  may   be                      excluded  if  its   probative  value   is                      substantially outweighed by the danger of                      unfair   prejudice,   confusion  of   the                      issues,  or  misleading the  jury,  or by                      considerations of undue  delay, waste  of                      time,   or   needless   presentation   of                      cumulative evidence.                                         -7-            tended to clarify for the jury the extent to  which the prior            conviction  might  or  might   not  be  probative  of  Reed's            predisposition to distribute cocaine.   While Reed later made            other,   different  objections   to  the  testimony   of  the            government's  witnesses, none  of  these, any  more than  the            motion  in limine itself, served to  preserve the question of                    __ ______            the admissibility  of the  evidence under  Rule 404(b).   See                                                                      ___            Vest, 842 F.2d  at 1326;  United States v.  Munson, 819  F.2d            ____                      _____________     ______            337, 340 (1st Cir. 1987).                      Absent  timely objection  to  the admission  of the            prior  conviction evidence,  our review  is solely  for plain            error.   Munson, 819 F.2d  at 340.   No  plain error  existed                     ______            here.   As  noted, Reed effectively  waived objection  to the            fact of the 1990 conviction,  apparently because he wished to            use the fact  that he was  on probation for  that offense  to            strengthen  his argument that he  was not predisposed to deal            in cocaine when approached by the undercover  agents in 1991.            Clearly, he  was entitled  to make  such  a strategic  choice            without interference from the  district judge.   Furthermore,            wholly apart from the waiver, Reed's prior cocaine possession            conviction  was, at  very  least,  arguably admissible  under                                               ________            Section 404(b)  to help  the  government meet  its burden  to            establish that he was  predisposed to sell cocaine.   Even if            Reed possessed the cocaine purely for personal use, this fact            might  lead  a reasonable  juror to  infer  that he  was more                                         -8-            likely predisposed than a nonuser to sell cocaine in order to            support his own  habit.   Moreover, the fact  that Reed,  the            driver of the  car, was in possession of an  ounce of cocaine            when  arrested  tended  to  suggest     that  quantity  being            arguably more than  normal for  personal use     that he  had            intended  to distribute  it,  even though  charged only  with            possession.  Thus even  if the 1990 offense and  details were            excludable  had they been  properly objected  to (a  point we            neither  decide nor  concede in  this opinion), any  error in            their  admission was far from being so patent as to amount to            clear error.  Indeed, as we already noted, the district court            could reasonably have believed that part of the defense's own            strategy  lay   in  trying   to  establish  Reed's   lack  of            predisposition  by  emphasizing  the  unlikelihood   that  an            individual  who was on probation for  a prior cocaine offense            would  have been predisposed to expose himself to the risk of            further punishment by dealing in cocaine.4                      Appellant  further   argues  on  appeal   that  the            district court erred  by denying his  motion for judgment  of            acquittal on  the  basis of  entrapment.   In  reviewing  the            denial  of a judgment of acquittal, the standard of review is                                            ____________________            4.  We also reject  appellant's contention that  the district            court should  have given a  limiting instruction to  the jury            regarding  the prior  conviction evidence.    Defense counsel            never requested the court  to give such an instruction.   The            failure  of the trial court  to give such  an instruction sua                                                                      ___            sponte is not reversible error.  United States v. De La Cruz,            ______                           _____________    __________            902 F.2d 121, 124 (1st Cir. 1990).                                         -9-            whether,  after  viewing  the  evidence  in  the  light  most            favorable  to the  prosecution,  any rational  trier of  fact            could have found  the essential elements to  have been proven            beyond  a reasonable  doubt.  United  States v.  Almonte, 952                                          ______________     _______            F.2d  20, 23  (1st Cir.  1991).   The affirmative  defense of            entrapment   has  two   related   elements:  (1)   government            inducement  of the crime, and (2) a lack of predisposition on            the part of the defendant.  United States v. Murphy, 852 F.2d                                        _____________    ______            1, 5 (1st  Cir. 1988),  cert. denied, 489  U.S. 1022  (1989).                                    ____________            Entrapment is a defense of fact for the jury to  decide.  See                                                                      ___            United  States v. Pratt, 913  F.2d 982, 988  (1st Cir. 1990),            ______________    _____            cert. denied, 111 S. Ct. 681 (1991).  Once  the defendant has            ____________            established that  he was  induced  to commit  the crime,  see                                                                      ___            Pratt, 913 F.2d at 987-88, the government must prove beyond a            _____            reasonable doubt that defendant was predisposed to commit the            crime.    Jacobson v.  United  States, 112  S.Ct.  1535, 1540                      ________     ______________            (1992).                      The jury reasonably could  have found that Reed was            not  induced by the government  to sell cocaine.   He readily            agreed to come to the motel to meet a purported cocaine buyer            and he made  the transfer  of cocaine and  accepted the  cash            without hesitation.  There is no evidence that the government            prodded him  to make the  second sale.  There  also was ample            evidence  to  support a  jury  finding,  beyond a  reasonable            doubt, that  Reed  was  predisposed  to  distribute  cocaine.                                         -10-            Among  other things,  the  record shows  that Reed  displayed            knowledge  about the quality and price of cocaine sold in the            local  area.   Reed  told the  BIDE  agent that  Reed's other            customers were satisfied with his cocaine.  We conclude  that            the  evidence was more than  sufficient for the  jury to find            that Reed was not entrapped.                      Finally, appellant argues  that the district  court            erred in  not incorporating his proposed  jury instruction on            entrapment into  the  instructions delivered  by  the  court.            "The trial  court's refusal to give  a particular instruction            constitutes   reversible   error   only   if   the  requested            instruction was (1)  correct as a matter  of substantive law,            (2)  not  substantially  incorporated   into  the  charge  as            rendered,  and (3)  integral  to an  important  point in  the            case."  United  States v. McGill,  953 F.2d 10, 13  (1st Cir.                    ______________    ______            1992).    In  this  case, Reed's  request  was  substantially            incorporated into the charge given and we can see no error.                      Affirmed.                      ________            -                                         -11-
