                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            OCT 6 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 99-5190
                                                     (D.C. No. 99-CR-6-C)
    GROVER STANLEY                                       (N.D. Okla.)
    MONHOLLAND,

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.




         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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Defendant appeals his conviction, following a jury trial, of possession of a

firearm after former conviction of a felony (18 U.S.C. § 922(g)(1)), possession of

a machine gun (18 U.S.C. § 922(o)(1)), and two counts of possession of an

unregistered firearm (26 U.S.C. § 5861(d)). He was sentenced to a total prison

term of 151 months. On appeal he raises two claims: error by the trial court in

declining to instruct the jury on the issue of entrapment, and the improper

overruling of his motion in limine to exclude evidence of his prior rape

conviction. We affirm.

       The facts underlying the convictions are as follows. Defendant was

introduced to the government’s chief witness, Ace Wright, in October of 1998.

The initial contact between the two men concerned scuba diving, apparently in an

attempt to locate some money supposedly under water. Defendant initiated the

subject of purchasing a gun. Thereafter the pair had several conversations

primarily about defendant’s desire to purchase an Uzi machine gun. After the

second discussion, Wright decided to record the conversations.       Wright presented

the tape to his attorney,   1
                                who contacted an agent of the Bureau of Alcohol,

Tobacco, and Firearms (ATF).




1
     At the time, Wright was awaiting sentencing on his conviction of a
gambling charge.

                                              -2-
       Subsequent contacts between defendant and Wright were recorded under

the supervision of the ATF agent.     After continued negotiations, Wright delivered

an Uzi, along with a .22 caliber pistol and two silencers to defendant, at which

point defendant was arrested.

       Defendant first contends that he was entitled to an instruction on

entrapment. Whether there is sufficient evidence to constitute a triable issue of

entrapment is a question of law which we review de novo.       See United States v.

Fadel , 844 F.2d 1425, 1434 (10th Cir. 1988) (citing    United States v. Ortiz , 804

F.2d 1161, 1164 (10th Cir. 1986)).

              The defense of entrapment prohibits law enforcement conduct
       which implants a criminal design in an innocent person’s mind and
       induces that person to commit a crime he is otherwise not
       predisposed to commit. The inquiry in an entrapment defense has
       two parts: (1) the lawfulness of the government’s conduct, and
       (2) the defendant’s predisposition to engage in the criminal activity.

United States v. Lampley , 127 F.3d 1231, 1242 (10th Cir. 1997) (further citations

omitted). Predisposition is the principal element, and this focuses on whether the

defendant was an “unwary innocent” or an “unwary criminal.”         See id. (further

quotations and citations omitted). Although the question of entrapment is

generally one for the jury,   see id. , “[t]he defendant must point to evidence of both

lack of predisposition and government inducement before the trial judge can

determine whether entrapment has been shown sufficiently to present it to the

jury.” Ortiz , 804 F.2d at 1165.    See also United States v. Fedroff , 874 F.2d 178,

                                            -3-
181-82 (3d Cir. 1989) (trial court will not instruct on entrapment unless defendant

has produced sufficient evidence on both prongs of defense and must evaluate

quantum of evidence for each element to determine if entrapment instruction is

warranted as matter of law). A defendant is entitled to present an entrapment

defense to the jury “only if he can identify evidence ‘from which a reasonable

juror could derive a reasonable doubt as to the origin of criminal intent. . . .’”

Ortiz , 804 F.2d at 1165 (quoting   United States v. Nations , 764 F.2d 1073, 1080

(5th Cir. 1985)).

      “The focal point in entrapment, therefore, centers on the defendant’s intent

or predisposition to engage in the offense rather than the degree of government

involvement.” See United States v. Mendoza-Salgado          , 964 F.2d 993, 1002 (10th

Cir. 1992). Indeed, defendant recognizes this, but argues that there was sufficient

evidence to warrant submitting the issue to the jury. We disagree. Although

defendant’s predisposition must be “viewed at the time the government agent first

approached the defendant, inferences about that predisposition may be drawn

from events occurring after the two parties came in contact.”       United States v.

Garcia , 182 F.3d 1165, 1169 (10th Cir.),     cert. denied , 120 S. Ct. 448 (1999).

      “Entrapment does not occur when government officials merely offer a

person the opportunity and means to commit an offense.”         United States v. Beal ,

961 F.2d 1512, 1516 (10th Cir. 1992);       see also , United States v. Dozal-Bencomo     ,


                                             -4-
952 F.2d 1246, 1252 (10th Cir. 1991) (“Merely providing a person ready and

willing to violate the law an opportunity to engage in the illegal acts is not

entrapment.”) (further citation omitted). The evidence in this case, particularly

the conversations between defendant and Wright, clearly reflect that the

defendant’s possession of the weapons was not the product of the creative activity

of the government.        Beal , 961 F.2d at 1516 (quotation omitted). The record

shows that the issue of gun purchase was initiated by the defendant, and

defendant indicated in subsequent conversations with Wright that he remained

interested in obtaining a gun, particularly an Uzi. The evidence in this case failed

to “create a genuine factual issue that properly [could] be resolved only by a jury

as the finder of fact.”     Ortiz , 804 F.2d at 1166.

       Defendant also contends the district court erred in overruling his motion in

limine to exclude evidence of a prior rape conviction.      Counsel had argued that

the conviction was nearly ten years earlier in time and that the prejudicial effect

would outweigh the probative value. However, the district court determined that

admitting this particular conviction would not be any more prejudicial than

admitting any other prior conviction.       On appeal defendant contends he “chose not

to testify for fear of the prejudice that the revelation of the rape conviction would

cause.” Appellant’s Br. at 7. He further states that because the rape conviction




                                              -5-
was nearly ten years old and unrelated to the weapons charges, it “was not

probative as to the veracity or truth of the defendant as a witness.”     Id. at 8.

         In Luce v. United States , 469 U.S. 38, 41 (1984), the Supreme Court

recognized the difficulty a reviewing court encounters in attempting “to rule on

subtle evidentiary questions outside a factual context,” noting that “[a]ny possible

harm flowing from a district court’s       in limine ruling permitting impeachment by a

prior conviction is wholly speculative.”       Id. For this reason the Court held “that

to raise and preserve for review the claim of improper impeachment with a prior

conviction, a defendant must testify.”       Id. at 43. We have also recognized this

requirement. See United States v. Powell , 982 F.2d 1422, 1434 (10th Cir. 1992)

(declining to review denial of pretrial motion to exclude evidence of prior

convictions where defendant did not testify at trial);     see also United States v.

Martinez , 76 F.3d 1145, 1151 (10th Cir. 1996) (recognizing         Luce requirement that

defendant testify in order to preserve claim of improper impeachment with prior

conviction). Here, because defendant did not testify, we are unable to review this

claim.




                                              -6-
     The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED.



                                                  Entered for the Court



                                                  Michael R. Murphy
                                                  Circuit Judge




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