                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             December 9, 2005
                             No. 04-15628                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

               D. C. Docket No. 04-00092-CR-ORL-28-KRS


UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

JAMES RAYBRIGHT MARTIN,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________
                           (December 9, 2005)


Before BIRCH, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
       Defendant-appellant, James Raybright Martin, appeals his conviction by a

jury of possession with intent to distribute 5 grams or more of cocaine base and

possession with intent to distribute 50 grams or more of cocaine base, in violation

of 21 U.S.C. § 841(a)(1), (b)(1)(A) and (b)(1)(B). The appeal requires us to

consider (1) whether the current standard of review of a motion for judgment of

acquittal violates the Sixth Amendment and the Due Process Clause; and (2)

whether the jury could reasonably have found that Martin was entrapped. Because

we have determined that the standard of review is constitutional and that the

government presented sufficient evidence for a reasonable jury to conclude that

Martin was predisposed to take part in the crimes, we AFFIRM.

                                   I. BACKGROUND

       A federal grand jury charged Martin in a three-count indictment with

knowingly and intentionally possessing with intent to distribute and distributing (1)

a quantity of a substance containing a detectable amount of cocaine hydrochloride,

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C);1 (2) five grams or more of

cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii); and (3) 50

grams or more of cocaine base, in violation of 21 U.S.C § 841(a)(1) and

(b)(1)(A)(iii).


       1
          The district court granted the government’s subsequent motion to dismiss Count One of
this indictment.

                                               2
      At Martin’s trial, a Federal Bureau of Investigation (FBI) Special Agent,

Edward Thompson, testified that he began investigating Martin in September 2003

by purchasing drugs from him under cover. The investigation was organized

through a cooperative drug task force, which included James Carlies of the

Orlando Police Department. Carlies had asked a confidential informant, Stevie

Ricks, with whom he had worked for about six years, to arrange to buy cocaine

from Martin sometime in August 2003. After that, the task force asked Ricks to set

up a deal for Thompson. Thompson and Ricks met with Martin on 4 September

2003, at Martin’s clothing store, at which time Thompson purchased $2,000 worth

of crack cocaine from Martin.

      This was the first time Ricks had worked as an informant for the FBI.

Thompson testified that he was unaware of Ricks’s criminal history and that he had

not investigated it because of Ricks’s prior experience as an informant. Carlies

testified that he was unaware of the extent of Ricks’ criminal history. Both Carlies

and Thompson testified that they would not have known whether Ricks tried to

intimidate or influence Martin into making any of the sales.

      Thompson testified that, after the first meeting, he recorded a telephone

conversation with Martin in which he told Martin that the cocaine he had

purchased earlier had been good and in which Martin replied that anytime



                                          3
Thompson wanted to make a purchase Thompson could just call Martin a day

beforehand. According to Thompson, he and Martin met again at the store on 30

September 2003. On this occasion, Martin took Thompson into the back storage

area, showed him a three-gram sample of crack cocaine, and discussed doing a

drug deal in the future. In late October, the two spoke over the phone about “doing

the fifty deal.” R3 at 123. These conversations were recorded and presented as

evidence at trial.

       Thompson called Martin again on 23 March 2004 and arranged to purchase

a quarter kilogram of crack cocaine. The deal was supposed to take place on the

following day, but, because of a lack of manpower, Thompson rescheduled it for

26 March. On that day, they met in the parking lot of a Home Depot, but Martin

had already sold the cocaine to another buyer. Martin told Thompson that he was

going to get some more, and they met later that day at a Burger King where Martin

sold Thompson a quantity of crack cocaine. Thompson testified that, during his

conversations with Martin, he never sensed that Martin had any hesitancy or

second thoughts regarding the drug transactions.

       Carlies recorded and monitored the conversations that occurred between

Thompson and Martin on 26 March 2004 and interviewed Martin after his arrest.

He testified that, in the course of his observation of and discussion with Martin, he



                                          4
never heard Martin express any reservations or hesitancy regarding the drug deal.

During the post-arrest interview, Martin told Carlies that he understood why he

was being arrested, and he was “being arrested for doing something stupid, for

trying to help out a friend.” R4 at 203. After Carlies testifed, Martin moved for a

judgment of acquittal, asserting that the government had failed to prove a prima

facie case against him. The court denied the motion.

       Martin then took the stand. Martin testified that he did not have any

intention to sell drugs through the store but that Ricks put him “under pressure.”

R4 at 241. Martin testified that Ricks came to see him eight or nine times a week

and that he was concerned that Ricks’s life might be in danger. Martin noticed that

Ricks had a gun and appeared to be in fear. Martin explained that the drug sale

was not his idea but that he agreed to help Ricks by selling some drugs “as a favor

for a friend,” because he “didn’t want to see [Ricks] get hurt.” R4 at 242, 247.

Martin testified that Ricks actually provided him with the cocaine he ultimately

sold to Thompson on 4 September. Martin also testified that he only did another

transaction with Thompson after that because he “was in fear of [his] life.” Id. at

244.

       When asked what kind of pressure Ricks exerted on him to break the law,

Martin responded, “He came to me with a story.” Id. at 250. Martin also testified



                                          5
that he had told Thompson, on at least one occasion, that he did not want to sell

drugs and that Thompson was lying when he testified to the contrary. Martin

testified that he sold 152 grams of crack to Thompson because Thompson “kept

calling” him. Id. at 252.

      After the defense rested its case, the district court denied Martin’s renewed

motion for a judgment of acquittal. The parties proceeded to make closing

arguments, after which the judge instructed the jury. The jury charge included an

instruction regarding the defense of entrapment. The jury deliberated and returned

a verdict finding Martin guilty of Counts Two and Three of the indictment.

      On appeal, Martin argues that the current standard of review for a denial of a

motion for judgment of acquittal violates the Sixth Amendment and due process

because it (a) mandates that all inferences be drawn in favor of the government, (b)

does not require that the evidence exclude every hypothesis of innocence, and (c) is

overruled by the Supreme Court’s decision in United States v. Booker.2 He also

argues that his motion for judgment of acquittal should have been granted because

he was entrapped as a matter of law.

                                       II. DISCUSSION

A. Constitutionality of Standard of Review



      2
          543 U.S. ___, 125 S. Ct. 738 (2005).

                                                 6
      We review constitutional issues de novo. See United States v. Wright, 392

F.3d 1269, 1280 (11th Cir. 2004), cert. denied, 125 S. Ct. 1751 (2005). Currently,

in our circuit, a district court considering a motion for the entry of judgment of

acquittal should apply the same standard used in reviewing the sufficiency of the

evidence to sustain a conviction; it must ascertain whether a reasonable jury could

have found the defendant guilty beyond a reasonable doubt. United States v.

Ward, 197 F.3d 1076, 1079 (11th Cir. 1999). In so doing, the court must “view the

evidence in the light most favorable to the government[,] . . . resolve any conflicts

in the evidence in favor of the government, . . . and must accept all reasonable

inferences that tend to support the government’s case.” Id. (citations omitted). “It

is not necessary for the evidence to exclude every reasonable hypothesis of

innocence or be wholly inconsistent with every conclusion except that of guilt,

provided a reasonable trier of fact could find that the evidence establishes guilt

beyond a reasonable doubt.” Id. (citing United States v. Sellers, 871 F.2d 1019,

1021 (11th Cir. 1989) (quoting United States v. Bell, 678 F.2d 547, 549 (5th Cir.

Unit B 1982) (en banc), aff’d on other grounds, 462 U.S. 356, 103 S. Ct. 2398

(1983))). Finally, “a jury is free to choose among reasonable constructions of the

evidence . . . [and t]he court must accept all of the jury’s ‘reasonable inferences

and credibility determinations.’” Id. (citations omitted).



                                           7
      1. Proposed Alternative

      Martin first argues that this current standard of review for denial of

judgment of acquittal violates his Sixth Amendment right to a jury trial and his

right to due process. Martin asserts that we should revert to what he describes as

having been our pre-1982 standard of review. Under his proposed standard, no

matter how strongly the evidence suggests guilt, a conviction may not be sustained

unless the evidence is inconsistent with any reasonable hypothesis of innocence.

      Martin cites Myles v. State, 826 So. 2d 1102, 1103 (Fla. Dist. Ct. App.

2002) for this standard. Even in Florida, however, it is only in circumstantial-

evidence cases that a conviction may not be sustained unless the evidence is

inconsistent with any reasonable hypothesis of innocence. Id. Because Thompson

has provided direct eyewitness testimony, this is not a circumstantial-evidence

case. Further, we have specifically rejected the distinction between direct evidence

and circumstantial evidence with respect to the standard of review. Bell, 678 F.2d

at 549 n.3 (citing Holland v. United States, 348 U.S. 121, 139-40, 75 S. Ct. 127,

137-38 (1954), which announced that circumstantial evidence is not intrinsically

different from testimonial evidence and described the every-reasonable-hypothesis

jury instruction as “confusing and incorrect”).

      Martin has failed either to demonstrate how our current standard of review



                                          8
violates the Sixth Amendment or due process requirements or to cite any

controlling precedent in support of his argument that the standard of review should

require every hypothesis of innocence be eliminated as a possibility before a

conviction may be sustained, particularly with regard to a case in which direct

evidence has been presented.

         2. Effect of Booker

         Martin also asserts that the Supreme Court’s decision in United States v.

Booker has rendered our standard of review unconstitutional. He has not,

however, explained how it can be read to have done so, particularly given its focus

on the Sentencing Guidelines.3 Accordingly, his argument that Booker overrules

our standard of review is unavailing. The standard set out in Ward, relying on

Bell, remains controlling law.

B. Entrapment

         Martin next argues that he was induced by the government’s confidential

informant to commit the crimes at issue and was thereby entrapped. Entrapment is

an affirmative defense. United States v. Quinn, 123 F.3d 1415, 1423 (11th Cir.

1997).


         3
         In Booker, the Supreme Court addressed the question of whether the Federal Sentencing
Guidelines violated the Sixth Amendment, holding that the mandatory nature of the Federal
Sentencing Guidelines rendered them incompatible with the Sixth Amendment’s guarantee of
the right to a jury trial. 543 U.S. at ___, 125 S. Ct. at 746. Martin has conceded that “there is no
meritorious issue to raise on appeal” in relation to his sentencing. Appellant’s Br. at 1.

                                                 9
      A valid entrapment defense requires two elements: (1) government
      inducement of the crime, and (2) defendant’s lack of predisposition to
      commit the crime prior to the inducement. Once the defendant has
      produced evidence of inducement, the government must prove beyond
      a reasonable doubt that the defendant was predisposed to commit the
      crime absent the government’s role in assisting such commission.

United States v. Francis, 131 F.3d 1452, 1455-56 (11th Cir. 1997) (citations

omitted). “Predisposition is a fact intensive inquiry into the defendant’s readiness

and willingness to engage in the crime absent any contact with the government’s

officers or agents.” Id. at 1456. “Evidence of predisposition may also include the

readiness or eagerness of the defendant to deal in the proposed transaction.”

United States v. Andrews, 765 F.2d 1491, 1499 (11th Cir. 1985). It may also

include evidence that the defendant had “opportunities to back out of illegal

transactions but failed to do so.” United States v. Brown, 43 F.3d 618, 625 (11th

Cir. 1995).

      Our review of a jury’s rejection of an entrapment defense is de novo, but is

“limited to determining whether the government presented sufficient evidence for a

reasonable jury to conclude that the defendant was predisposed to take part in the

crime.” Francis, 131 F.3d at 1456. Further, “we view all evidence and make all

inferences in favor of the government[, and] . . . we cannot overturn the jury’s

verdict if any reasonable construction of the evidence would allow the jury to find

the defendant guilty beyond a reasonable doubt.” Id. Finally, we have stated that,

when a defendant takes the stand, “the jury may make adverse determinations

                                          10
about his credibility and reject his explanation as a complete fabrication.” United

States v. Vazquez, 53 F.3d 1216, 1225 (11th Cir. 1995) (citations omitted).

      In this case, the government has presented sufficient evidence for a

reasonable jury to conclude that Martin was predisposed to take part in the crime.

The trial testimony of the government’s witnesses established that Martin

participated in several drug transactions. The government’s witnesses testified that

Martin showed no hesitancy about engaging in these transactions. Further, the

jury, after listening to Martin’s testimony and receiving a jury instruction regarding

entrapment, was entitled to disbelieve Martin’s entrapment defense and to find him

guilty. Thus, there is a reasonable construction of the evidence that would allow a

jury to find the defendant guilty beyond a reasonable doubt.

                                III. CONCLUSION

      Martin challenges his conviction on the grounds that the current standard of

review for a motion for judgment of acquittal violates the Sixth Amendment and

the Due Process Clause and that he was entrapped. This standard of review is

established law in our circuit and we see no way in which it violates either the

Sixth Amendment or the Due Process Clause. The government presented

sufficient evidence of Martin’s predisposition to commit the crimes of which he

has been convicted for a jury to conclude he was not entrapped. Accordingly, we

AFFIRM Martin’s conviction.


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