                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-29-2008

USA v. Hogue
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1690




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Recommended Citation
"USA v. Hogue" (2008). 2008 Decisions. Paper 472.
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                                                              NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                                  No. 07-1690


                       UNITED STATES OF AMERICA

                                        v.

                               WAYNE HOGUE,
                              a/k/a IMAN WADIR,
                            a/k/a SHAHDEED BAY,

                                             Wayne Hogue,
                                                  Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                     (D.C. Criminal Action No. 06-cr-00125)
                   District Judge: Honorable Timothy J. Savage


                   Submitted Under Third Circuit LAR 34.1(a)
                              September 25, 2008


             Before: BARRY, AMBRO, and JORDAN, Circuit Judges

                           (filed: September 29, 2008 )




                                    OPINION

AMBRO, Circuit Judge
          Wayne Hogue appeals his conviction on 15 firearms trafficking charges. He

alleges infirmities in the District Court’s entrapment instruction. We disagree and thus

affirm.1

                                               I.

          Because we write only for the parties who are familiar with the factual context and

procedural history of the case, we note only those facts necessary to our analysis.

Accordingly, we limit our discussion to the District Court’s entrapment instruction, which

was as follows:

                 Wayne Hogue asserts that he was entrapped by the government to
          commit the crimes alleged in the indictment. If he was entrapped by the
          government, the defendant may not be convicted of the crimes. A person is
          entrapped when that person has no previous intent or disposition or
          willingness to commit the crimes charged and is induced or persuaded by
          law enforcement officers or by their agents who include informants to
          commit the offense. A person is not entrapped when that person has a
          previous intent or disposition or willingness to commit the crime charged
          and law enforcement officers or their agents merely provide what appears to
          be an opportunity to commit an offense. It is not entrapment for a
          government agent to pretend to be someone else and then to engage or
          attempt to engage, either personally or through an informant, in an unlawful
          transaction or in an unlawful act with a person who has a previous intent or
          disposition or willingness to engage in the unlawful transaction or in the
          unlawful act.

                 In determining the question of entrapment, you should consider all of
          the evidence received in this case concerning the intentions and disposition
          of the defendant, Wayne Hogue, before he came into contact with the law
          enforcement officers or their agents and also the nature and the degree of
          inducement or persuasion provided by the law enforcement officers or their



   1
       Jurisdiction is proper pursuant to 28 U.S.C. § 1291.

                                                2
       agents.

       The government must prove beyond a reasonable doubt that the defendant,
       Wayne Hogue, was not entrapped. Thus, in order to return a verdict of
       guilty for the crimes charged in the indictment, you must find beyond a
       reasonable doubt that the defendant, Wayne Hogue, was disposed to
       commit the crimes charged before being approached by government agents.

App. 35 Midway through their deliberations, the jury sought clarification on this matter;

the District Court reread the instruction in its entirety.2 The jury subsequently returned a

verdict of guilty on 15 of the 17 counts charged in the indictment.

                                             II.

       Hogue claims that the entrapment instruction failed to focus the jury adequately on

“the period of time prior to the government agent’s intervention in order to determine

whether the defendant was so inclined to commit the crime before they approached”

Hogue Br. at 7. We disagree. The jury was told to “consider . . . the intentions and

disposition of the defendant . . . before he came into contact with the law enforcement

officers or their agents;” that “[a] person is entrapped when that person has no previous



   2
    Defense counsel objected to the initial instruction, saying that, “on reasonable doubt,
the Court repeatedly stated that they have to prove each element of the crimes charged.
Because of the entrapment defense, predisposition also has to be one of the things, almost
like an element proven beyond a reasonable doubt.” App. 41. Counsel did not object to
the subsequent rereading. While Hogue admits that this acquiescence – especially when
coupled with the lack of specificity in the initial objection – may limit our review to plain
error, see, e.g., Cooper Dist. Co. v. Amana Refrigeration, Inc., 180 F.3d 542, 549 (3d Cir.
1999), we decline to address the issue because the instruction amounted to neither an
abuse of discretion nor an instance of plain error. We also decline to consider the
Government’s argument that an entrapment instruction was not justified in the first
instance and its related argument that the instruction was too generous to the defendant.

                                              3
intent or disposition or willingness to commit the crimes charged;” and that “[a] person is

not entrapped when that person has a previous intent or disposition or willingness to

commit the crime charged.” Even Hogue acknowledges that the jury was told to “focus

on the time before the agent came into contact with [him]” when making the entrapment

assessment. Id. at 8. In sum, we believe that the instruction directed the jury’s attention

to the appropriate time period.

       In the alternative, Hogue argues that the instruction was flawed because “the court

failed to adequately define . . . inducement.” Id. at 9. Again we disagree. The District

Court told the jurors that they could not convict if Hogue lacked “previous intent or

disposition or willingness to commit the crimes charged and [was] induced or persuaded

by law enforcement officers or by their agents who include informants to commit the

offense.” In other words, the District Court asked the jury to determine whether “the

Government’s deception actually implant[ed] the criminal design in the mind of the

defendant,” and told it to acquit if so. This is a proper statement of the law. United

States v. Russell, 411 U.S. 423, 435-36 (1973); accord United States v. Lakhani, 480 F.3d

171, 178-79 (3d Cir. 2007). Accordingly, because the instruction was both clear and

correct, it offers no basis for relief.

                                            III.

       For the reasons stated above, we affirm.




                                              4
