                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                      December 11, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                         No. 14-1047
                                                 (D.C. No. 1:12-CR-00504-RBJ-1)
KENNETH GREENWOOD,                                          (D. Colo.)

             Defendant - Appellant.


                            ORDER AND JUDGMENT*


Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.


      A jury found Kenneth Greenwood guilty of two counts of possession of a

firearm by a prohibited person in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)

and two counts of possession of less than twenty-eight grams of cocaine base with

the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 851.

But the jury acquitted him of a third identical drug count. He moved for a judgment

of acquittal on the two drug counts, relying on his trial defense of entrapment. The

*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
district court denied the motion. We affirm the court’s denial of the motion for

acquittal.

                                   BACKGROUND

       In August of 2012, a former convicted felon and Bloods gang member was

arrested on habitual traffic offender charges. Because he did not want to be

incarcerated, he contacted the Bureau of Alcohol, Tobacco and Firearms (ATF) and

the Denver Police Department (DPD) and entered into an agreement to act as a

confidential informant (CI). Under the agreement, his traffic charges would be

dropped, a pending drug case would be dismissed, and he would be compensated in

exchange for his assistance in controlled purchases of guns and drugs.

       The CI informed the ATF and DPD that he could buy guns and drugs from his

friend Mr. Greenwood, another Bloods gang member. Over the course of two

months, the CI set up two deals with Mr. Greenwood to buy guns and three deals to

buy drugs.1

       The first drug purchase occurred on September 13, 2012. The CI met

Mr. Greenwood at the location Mr. Greenwood directed and purchased one ounce of

cocaine for $1,200. This transaction occurred inside a vehicle. On September 14 and

18, the CI obtained guns from Mr. Greenwood. The second drug purchase occurred

on September 24, six days after the last gun deal and eleven days after the first drug


1
      Mr. Greenwood does not challenge his gun convictions, so we assume he was
properly convicted of them.


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purchase. The CI and Mr. Greenwood met in the alley behind Mr. Greenwood’s

convenience store. The CI gave Mr. Greenwood $900 for ¾ of an ounce of crack

cocaine. Mr. Greenwood then went to his home to obtain an additional ¼ ounce.

After returning, he sold the rest of the drugs to the CI for $300 and asked the CI if he

needed anything else, indicating with gang slang that he had drugs for sale. The third

drug deal occurred on November 2 in Mr. Greenwood’s convenience store. The CI

purchased an ounce of crack cocaine for $1,200. Although Mr. Greenwood had

promised to sell the CI an additional ounce, he did not have the drugs at that time,

and the CI did not wait for the other drugs to be delivered.

      Based on these five transactions, Mr. Greenwood was charged with two counts

of improperly possessing guns and three counts of selling crack cocaine. At trial, the

court instructed the jury on Mr. Greenwood’s defense that he was not guilty due to

entrapment. The jury, however, found him guilty of both gun counts and the

September 24 and November 2 drug counts. Mr. Greenwood moved for a judgment

of acquittal on the drug counts, arguing that because the jury found him not guilty of

the September 13 drug count, the court should find as a matter of law that the

government did not prove that he was not entrapped when he engaged in the latter

two drug deals. The court denied the motion, finding that the three drug transactions

were distinct, that the jury was properly instructed on entrapment, and that the

evidence supported a finding of guilt on the two later drug offenses.




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                                     ANALYSIS

       “We review de novo a district court’s denial of a motion for judgment of

acquittal, viewing all the evidence and drawing all reasonable inferences in the light

most favorable to the government.” United States v. Hildreth, 485 F.3d 1120, 1125

(10th Cir. 2007) (internal quotation marks omitted).

      “[A] successful entrapment defense exists when the government (1) induces

the defendant to commit an offense that (2) the defendant was not predisposed to

commit.” United States v. Dyke, 718 F.3d 1282, 1291 (10th Cir. 2013). Once an

entrapment defense is raised, the government bears the burden to prove “beyond a

reasonable doubt that the defendant was not entrapped.” United States v. Ford,

550 F.3d 975, 982 (10th Cir. 2008). If the government disproves either element, the

entrapment defense fails. Id.

      “Entrapment exists as a matter of law only if the evidence of entrapment is

uncontradicted.” United States v. Nguyen, 413 F.3d 1170, 1177 (10th Cir. 2005)

(internal quotation marks omitted). There must be “undisputed testimony” showing

“conclusively and unmistakably” that the government induced the defendant to

engage in criminal conduct. Id. at 1178 (emphasis and internal quotation marks

omitted).

      Mr. Greenwood argues that the district court erred in denying his motion for

judgment of acquittal because the evidence at trial showed he was entrapped as a

matter of law with respect to the September 24 and November 2 drug transactions.


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Relying on United States v. Beal, 961 F.2d 1512 (10th Cir. 1992), he contends that all

three drug transactions were part of the same course of conduct resulting from the

CI’s original inducement.

      In Beal, 961 F.2d at 1513, a jury found the defendant not guilty of a first drug

count, but guilty of a second. Based on the facts in that case, this court held that the

two drug deals, which occurred within approximately twenty-four hours of each

other, were part of a single, continuous course of conduct. Id. at 1516-17.

      Beal is distinguishable. Even if, as Mr. Greenwood assumes, the jury found

entrapment with respect to the first transaction,2 we conclude that as a matter of law

he was not entrapped with respect to the second and third transactions. Unlike in

Beal, here there was a variation of the circumstances with each drug deal and the

deals occurred on different days, several days apart. As such, the second and third

transactions were separate and independent from the first drug deal and were not part

of a continuous course of conduct. Nor were they “closely connected transactions

without any intervening events.” Nguyen, 413 F.3d at 1180. Beal refused to adopt

“as a general rule that once entrapment occurs, a defendant’s subsequent willing acts

are immunized from culpability.” 961 F.2d at 1517; see also Ford, 550 F.3d at 982
2
       We do not agree with Mr. Greenwood’s assumption that the jury found that he
was entrapped with respect to the first drug deal. The record does not conclusively
indicate why the jury chose to acquit Mr. Greenwood on the first drug count. It could
have found that the government did not prove the first count beyond a reasonable
doubt because the surveillance camera was obstructed during part of the first drug
deal. But the jury may have found as events unfolded that the evidence was
conclusive as to the second and third drug transactions.


                                          -5-
(“Even if a defendant was entrapped in one transaction, we do not automatically

assume all subsequent transactions between the government agent and defendant are

tainted.”).

       If Beal does not apply, Mr. Greenwood argues that any predisposition he may

have had to sell drugs on September 24 and November 2 was the product of improper

government conduct and thus there was entrapment as a matter of law.

Predisposition occurs when a defendant is ready and willing to commit the crime he

was charged with. Dyke, 718 F.3d at 1291. It may be shown by evidence of prior

illegal acts that are similar. Hildreth, 485 F.3d at 1126. It may also be shown by

evidence that the defendant desired a profit, he was eager to participate in the crime,

he readily responded to the offer to participate, or he showed knowledge and

experience in selling drugs. See Dyke, 718 F.3d at 1291-92.

       Ample evidence shows that Mr. Greenwood was predisposed to sell drugs. He

had prior convictions for selling drugs, which the government established before the

jury. At the time of his arrest, he possessed multiple cellphones, large amounts of

cash, guns, drugs, and drug-related items at his home, all typical of a drug distributor.

The CI testified that Mr. Greenwood sold guns and drugs because that is what gang

members do. Also, Mr. Greenwood offered drugs, among other things, to the CI

when the CI wanted to sell his car. After the second drug deal, he asked the CI if he

needed anything else, indicating that he had drugs for sale. And Mr. Greenwood

attempted to sell the CI an additional ounce of crack cocaine during the third drug


                                          -6-
deal. No evidence indicates reluctance by Mr. Greenwood to be involved in drug

dealing.

      Unlike in Jacobson v. United States, 503 U.S. 540, 553-54 (1992), a case

Mr. Greenwood cites to support his argument, the evidence does not show that the

government induced a law-abiding citizen to commit a crime he never would have

committed if he had been left alone. Furthermore, similar to Beal, Jacobson does not

negate “an individualized treatment of the entrapment defense in multiple transaction

crimes.” Nguyen, 413 F.3d at 1179 (trial court gave entrapment instruction on first

two transactions, but not on third).

      Viewing the evidence in the light most favorable to the government, we

conclude that Mr. Greenwood was not entrapped as a matter of law and therefore the

district court did not err in denying the motion for acquittal. Accordingly, we affirm

the district court’s judgment.


                                               Entered for the Court


                                               Jerome A. Holmes
                                               Circuit Judge




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