                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                              September 16, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 08-3261
                                             (D.C. No. 5:07-CR-40117-SAC-1)
    JAMES NELSON FULTON,                                 (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before O’BRIEN, PORFILIO, and TYMKOVICH, Circuit Judges.



         A jury rejected defendant James Nelson Fulton’s entrapment defense and

found him guilty of three drug charges: possession with intent to distribute

approximately 63 grams of cocaine; use of a telephone to facilitate a drug

transaction; and possession with intent to distribute approximately one kilogram

of cocaine. Mr. Fulton appeals, and we affirm.



*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                                          I.

      In 2001, Mr. Fulton was released from prison after serving a sentence for

cocaine-related crimes. Four years later, one of his former prison-mates entered a

guilty plea to a federal firearms charge. The prison-mate met with federal agents

and agreed to be a confidential informant, hoping to receive a more lenient

sentence in exchange for his cooperation. In furtherance of his

confidential-informant role, the prison-mate renewed his friendship with

Mr. Fulton in 2006 and began visiting him at his place of employment. During

their talks, the confidential informant suggested that the two work together on

drug deals. Mr. Fulton initially resisted the proposition, asserting that he had

become a law-abiding employee, family man, church-goer, and student. But the

confidential informant had seen Mr. Fulton possessing powder cocaine and

cooking it into crack cocaine after his release from prison.

      In March of 2007, Mr. Fulton agreed to participate in the first of the two

transactions that led to his indictment: selling 63 grams of powder cocaine to the

confidential informant. The second transaction took place on May 9, 2007, when

the confidential informant arranged for Mr. Fulton to buy a kilogram of cocaine

from an undercover agent. The episode ended with Mr. Fulton’s arrest.

      At trial, Mr. Fulton did not contest the government witnesses’ description

of the transactions. Instead, his theory of the case was that government agents

had entrapped him. As relevant to the entrapment defense, the government

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proffered the confidential informant’s testimony that he witnessed Mr. Fulton

obtain nine ounces of cocaine on December 31, 2006, without the informant’s

prior knowledge or assistance. Mr. Fulton objected to the evidence as irrelevant

and unduly prejudicial under Fed. R. Evid. 404(b). The government contended

that the evidence was offered “to prove motive, intent, knowledge, absence of

mistake, pretty much each of those criteria, and opportunity.” R. Vol. 2, at 173.

Without elaboration, the district court ruled the evidence was admissible and

allowed the confidential informant to testify about the incident.

      Through the admission of video or audio recordings, the jury also had an

opportunity to evaluate Mr. Fulton’s conduct during the charged transactions. In

addition, Mr. Fulton testified on his own behalf. He maintained that the

confidential informant had coerced him into drug dealings through pleas for

financial help, exploitation of their friendship, and sheer persistence. He

explained his own motives for the May 9 transaction:

      I already told him, I said--I said, Man, I don’t want to do this. But
      then in the same time, I was like, well, maybe I can make something
      off of it if we could do it. And I was like maybe this is my big ticket
      out of here. You know, I had a dream. I just wanted to leave
      Topeka. I just want to go somewhere and start all over. And I was
      like, well, maybe I could do it one more time with you.

Id. at 346. He said that the confidential informant made the “deal seem like it

was going to be a good deal.” Id. at 382.




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       In submitting the case to the jury, the district court provided an instruction

on entrapment, as well as an instruction limiting the contested evidence to

Mr. Fulton’s intent and knowledge. The jury found Mr. Fulton guilty on all

counts. Later, the district court denied Mr. Fulton’s motion for acquittal

notwithstanding the verdict.

                                          II.

       On appeal, Mr. Fulton raises two inter-related arguments. First, he attacks

the district court’s admission of evidence of the confidential informant’s

testimony on the unsolicited drug transaction. Second, he argues the evidence

was insufficient to support the jury’s finding that the government did not entrap

him.

        Both arguments are associated with his entrapment defense. The two

basic elements of entrapment are (1) government agents’ inducement of the

defendant to commit the crime and (2) absence of the defendant’s predisposition

“to commit the offense given the opportunity.” United States v. Nguyen, 413 F.3d

1170, 1178 (10th Cir. 2005). Mr. Fulton maintains that he was not predisposed to

engage in drug transactions until the confidential informant approached him.

Admissibility of Evidence

       Mr. Fulton challenges the admission of the confidential informant’s

testimony about his cocaine purchase on December 31, 2006. Rule 404(b) of the

Federal Rules of Evidence provides that evidence of a defendant’s prior bad acts

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“is not admissible to prove the character of a person in order to show action in

conformity therewith,” but it may “be admissible for other purposes, such as

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.”

      Admission of evidence under Fed. R. Evid. 404(b) is reviewed for abuse of

discretion. United States v. Hardwell, 80 F.3d 1471, 1488 (10th Cir. 1996).

      There are four requirements for admissibility under 404(b). The
      evidence of other crimes, wrongs or acts must be introduced for a
      proper purpose, must be relevant, must have probative value that is
      not substantially outweighed by the potential for unfair prejudice;
      and, on request, the trial court must give a jury instruction limiting
      the evidence to the proper purpose.

Id. And “the government must precisely articulate the purpose for which the

evidence is offered, and the trial court must specifically identify the purpose for

which it is admitted.” Id. “[F]ailure to do so,” however, “is harmless error if the

purpose for admitting the evidence is apparent from the record and the decision to

admit it is correct.” Id.

      “Although the government normally may not introduce evidence of a

defendant’s predisposition to engage in criminal activity, it may do so once a

defendant submits evidence which raises the possibility that he was induced to

commit the crime, usually in the context of an entrapment defense.” United

States v. Brannan, 562 F.3d 1300, 1308 (11th Cir. 2009) (quotation omitted). In

other words, “[i]ntroduction of extrinsic evidence is a reliable method for


                                         -5-
showing the criminal predisposition necessary to rebut any allegation of

entrapment.” Id.; see also United States v. Santiago, 566 F.3d 65, 72 (1st Cir.

2009) (“An entrapment claim allows the government to counter with evidence that

the defendant was predisposed to commit the crime. . . .”); United States v.

Abumayyaleh, 530 F.3d 641, 650 (8th Cir. 2008) (“Evidence of prior bad acts is

admissible to show a defendant’s predisposition once the defendant has asserted

the entrapment defense.”) (quotation omitted); United States v. Emerson, 501 F.3d

804, 812 (7th Cir. 2007) (“Rule 404(b) also allows the government to introduce

evidence of other bad acts in order to show predisposition when the defendant

raises an entrapment defense.”). And, though predisposition is “viewed at the

time the government agent first approaches the defendant” inferences “may be

drawn from events occurring after the two parties came into contact.” Nguyen,

413 F.3d at 1178 (quotation omitted).

      In arguing for the admissibility of the confidential informant’s testimony

about the December 2006 purchase, the government provided reasons consistent

with Rule 404(b). Although the district court’s evidentiary ruling was terse, it is

apparent from the record the challenged evidence was admitted in connection with

Mr. Fulton’s entrapment defense. Moreover, the limiting jury instruction

informed the jury that the evidence was admitted only to show intent and

knowledge. We cannot say that the district court abused its discretion in

admitting the challenged testimony.

                                         -6-
Sufficiency of Evidence on Entrapment

      We review sufficiency-of-evidence challenges de novo, viewing the

evidence in the light most favorable to the government. United States v. Parada,

___ F.3d ___, No. 07-3272, 2009 WL 2602442, at *5 (10th Cir. Aug. 25, 2009).

Our inquiry is limited to “whether sufficient evidence exists to support the jury’s

verdict,” without choosing between conflicting witnesses or judging credibility.

United States v. Hildreth, 485 F.3d 1120, 1125 (10th Cir. 2007) (quotation

omitted). We “will overturn a jury’s rejection of the entrapment defense only if

no reasonable jury could have found that the government proved beyond a

reasonable doubt that there was no entrapment.” United States v. Young, 954 F.2d

614, 618 (10th Cir. 1992) (quotation and ellipses omitted).

      Mr. Fulton’s sufficiency-of-evidence contention essentially restates the

points he made to the jury. In arguing entrapment on appeal, he emphasizes the

length of time and number of contacts before the confidential informant

persuaded him to participate in the first charged transaction. He also points to the

evidence (primarily his own testimony) showing that after his release from prison,

he was an engaged parent and spouse, a steady employee, a churchgoer, and a

student. Conceivably, a reasonable jury could have accepted Mr. Fulton’s

contention that he was entrapped: that is, induced to commit the charged offenses

even though he was not predisposed to do so.




                                        -7-
      The trial record, however, also contains contrary evidence. Mr. Fulton’s

argument is especially wanting on the predisposition prong of his entrapment

defense. Predisposition is “a defendant’s inclination to engage in the illegal

activity for which he has been charged, i.e., that he is ready and willing to commit

the crime.” Nguyen, 413 F.3d at 1178 (quotation omitted). The element “may be

shown by evidence of similar prior illegal acts or it may be inferred from

defendant’s desire for profit, his eagerness to participate in the transaction, his

ready response to the government’s inducement offer, or his demonstrated

knowledge or experience in the criminal activity.” Id. (quotations omitted).

      There is evidence of Mr. Fulton’s possession of cocaine prior to

government intercession, his unsolicited December 2006 cocaine purchase, his

desire to use the profits to move from Topeka, and his knowledge of drug

transactions. Under the applicable standard, the evidence is sufficient to support

the jury’s disbelief of his entrapment defense.

      The judgment of the district court is AFFIRMED .


                                                      Entered for the Court


                                                      John C. Porfilio
                                                      Circuit Judge




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