United States v. Madarrow Smith ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-14815
NOVEMBER 5, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-60290-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MADARROW SMITH,
WALTER ROBERTS,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(November 5, 2009)
Before BLACK, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Madarrow Smith and Walter Roberts appeal their convictions for conspiracy
to possess with intent to distribute five kilograms or more of cocaine. On appeal,
they challenge the district court’s denial of their requested jury instructions. After
a thorough review of the record, concluding there was no error, we affirm.
I. Background
Smith and Roberts were indicted along with Caleb Glenn Williams, Anthony
Butler, and Corey Edwards for conspiracy to possess with intent to distribute five
kilograms or more of cocaine, in violation of 21 U.S.C. § 846 (Count 1); attempted
possession with intent to distribute five kilograms or more of cocaine, in violation
of § 846 (Count 2); and using and carrying a firearm in relation to a drug
trafficking offense, in violation of 18 U.S.C. § 924(c) (Count 3). Tavoris Battle
was charged by information with conspiracy under 18 U.S.C. § 1951 in connection
with these offenses. Williams, Butler, Edwards, and Battle pleaded guilty; Smith
and Roberts proceeded to trial.
According to the evidence presented at trial, after receiving information
from a confidential informant (“CI”) about a group of individuals committing
armed robberies, Special Agent Michael Connors and the ATF initiated a sting
operation in which Connors would go undercover and set up a fake robbery of a
drug stash house. Upon Connors’s request, the CI introduced him to Williams with
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the cover story that Connors worked for a narcotics organization and needed a
crew to rob a stash house. Connors then met with Williams to discuss the robbery.
At that meeting, which was recorded, Connors explained that he drove a truck for a
group of Colombians, usually transporting fifteen or twenty kilograms of cocaine
to different vacant houses for pick-up. Because the Colombians had not been
paying what they promised, Connors wanted to rob a stash house to get his money.
He advised Williams that there were routinely two men guarding a house, each
armed with handguns. Connors repeatedly stated the job was a “guaranteed thing.”
Connors suggested that he could get the crew a rental car if they needed it.
Williams indicated that he would need four men to do the job and the men would
want to meet Connors before the robbery.
Connors later met with Williams and Butler. After discussing details of the
robbery, Connors told Butler it was important that the crew have experience to get
the job done, and he stated that there would be a guaranteed twenty-five to thirty
kilograms of cocaine in the house. Butler said he had three others on his crew, and
he arranged a meeting between Connors and the rest of the crew.
Connors next met with Williams, Butler, Edwards, and Roberts. During this
meeting, Roberts asked about the location of the robbery, the type of guns the men
at the stash house would have, the number of people guarding the stash house, and
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whether there was any other surveillance. Roberts asked the best way to “take
them.” Roberts stated that, when the crew entered the stash house, Connors would
“get no special treatment. Real robbers ain’t got to beat nobody up, hit nobody. . . .
A real robber come for the loot, man. . . . It’s an art.” Roberts added that he
“train[ed] for shit like this.” Roberts asked whether Connors had weapons or if the
crew needed to get their own, which he indicated would not be a problem. Roberts
then told Connors to find a get-away car and suggested that Connors bring the guns
to the meeting because the crew “can’t be riding all the way out west, a car full of
niggas with guns.” Roberts later asked whether there was any money in the stash
house, to which Connors replied that there were only drugs.
Smith arrived at this meeting later. He asked whether Connors was ever
followed after leaving the stash house and he pointed out that the targets could not
go to the police to report the robbery. Smith asked about the weapons the guards
carried and whether the guns were in the guards’ hands or on a table.
On the night of the robbery, Connors met the crew at a gas station.
Although Battle had not been present for any of the previous meetings, he arrived
with Williams and Roberts. The crew was dressed alike in dark clothes, ski masks,
and gloves. When asked if he had his mask and was ready, Roberts said, “Yeah,
ready to do it.” According to Connors, no one ever indicated an unwillingness to
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participate. The crew followed Connors to the alleged stash house where Smith
noticed a security camera on the building and suggested everyone go inside.
Roberts remained in the car. Law enforcement officers made the arrests after the
crew entered the building.
Following the arrests, Smith and Williams were placed in a patrol car and
their conversation was recorded. Smith wondered where Connors was, referring to
Connors as “this pussy ass cracker who just set us up?” Smith commented that
they were facing federal time now, to which Williams responded, “We didn’t do
shit.” Smith agreed, explaining that the police had not found a gun on him. He
then stated, “Cracker caught us dead in here.” Smith then told Williams, “My wife
ain’t want me to come on this shit.” Smith then said to the officers, “Only thing
we were doing – coming to bring my man . . . some artillary . . . . Coming to sell
his ass artillary and g[]d dammit, before we can get the deal done, y’all come in.”
Roberts and Battle were placed in another car, where their conversation also
was taped. Roberts stated that he was just “looking out.” He commented that he
had told Williams they did not need the guns. Roberts then stated, “I should have
just said f[] it, I don’t want to go in there, but I didn’t want to look like no chump.”
He added, “I didn’t have no plans to be back in this shit this fast.”
On cross-examination, Connors admitted that the ATF was looking for
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people predisposed to commit armed robberies. Counsel for the defendants
repeatedly asked whether Connors had encouraged the offense by suggesting
weapons and violence, offering to get a rental car, and promising that the crime
was a “guaranteed thing.” Connors explained that someone who was not
predisposed would not show up on the day of the robbery, would not bring a gun
or mask, and would try to back out. Connors stated that he had no contact with
Roberts or Smith outside the meetings; thus, if someone recruited them to join, it
was someone other than a law enforcement agent.
ATF Agent Eric Bauer testified that he was part of the arrest team and found
Smith hiding under a trailer. After Smith was arrested and secured, agents
searched under the trailer and found a gun and ski mask. Detective Jason Hendrick
with the Broward County Sheriff’s Office testified that he found gloves in Smith’s
pocket. He then explained that, after the defendants were taken to the station,
Smith and Butler were held in a conference room to be interviewed. When Smith
saw Connors enter the station, Smith said to Butler, “I told you we should have
shot him.”1 ATF agent Jim Rhoden testified that he found gloves in Roberts’s
pocket, a black cap on Roberts’s head, and guns and a mask in the car in which
Roberts was riding. Rhoden admitted, however, that agents did not find a gun on
1
The court issued a limiting instruction to the jury that this testimony was to be considered
only against Smith and not in connection to Roberts.
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Roberts.
After the government rested its case in chief, the defense called a single
witness to testify about the lack of fingerprints or DNA evidence on the firearms.
Roberts and Smith requested that the court instruct the jury on the defense
theory of entrapment. Roberts also requested that the jury be instructed on
withdrawal from the conspiracy. After hearing argument, the court denied both
instructions.
The jury convicted Roberts and Smith of the conspiracy, but acquitted them
of the remaining charges. The court sentenced each defendant to 324 months’
imprisonment. This appeal followed.
II. Standard of Review
We review a trial court’s refusal to give a jury instruction requested by the
defense for abuse of discretion. United States v. Westry, 524 F.3d 1198, 1216
(11th Cir.), cert. denied, 129 S.Ct. 251 (2008), and 129 S.Ct. 902 (2009). To
constitute reversible error, a defendant must show that the requested jury
instruction “‘(1) was a correct statement of the law; (2) was not adequately covered
in the instructions given to the jury; (3) concerned an issue so substantive that its
omission impaired the accused’s ability to present a defense; and (4) dealt with an
issue properly before the jury.’” Id. (quoting United States v. Brazel, 102 F.3d
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1120, 1139 (11th Cir. 1997)).
III. Discussion
Smith and Roberts challenge the court’s denial of their requested entrapment
instruction on the ground that they offered evidence to show that the government
agent induced them to commit the offenses, and thus the question of entrapment
became a factual question for the jury. Roberts also challenges the denial of his
requested withdrawal instruction.
A. Entrapment
Entrapment is an affirmative defense. United States v. Orisnord, 483 F.3d
1169, 1178 (11th Cir. 2007); United States v. Quinn, 123 F.3d 1415, 1423 (11th
Cir. 1997). There are two elements to an entrapment claim: (1) government
inducement of the crime and (2) the defendant’s lack of predisposition to commit
the crime before the inducement. Orisnord, 483 F.3d at 1178; United States v.
Ryan, 289 F.3d 1339, 1343 (11th Cir. 2002). “[T]he defendant bears the initial
burden of production as to government inducement[,]” and he may meet this
“burden by producing any evidence sufficient to raise a jury issue that the
government’s conduct created a substantial risk that the offense would be
committed by a person other than one ready to commit it.” Orisnord, 483 F.3d at
1178 (citation omitted). “The defendant may make such a showing by
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demonstrating that he had not favorably received the government plan, and the
government had to ‘push it’ on him or that several attempts at setting up an illicit
deal had failed and on at least one occasion he had directly refused to participate.”
United States v. Andrews, 765 F.2d 1491, 1499 (11th Cir. 1985) (internal citations
omitted). Once the defendant produces sufficient evidence of inducement, the
government must prove beyond a reasonable doubt that the defendant was
predisposed to commit the offense. Id.Here, the district court did not abuse its discretion when it refused to instruct
the jury on entrapment because neither Smith nor Roberts met the burden to show
government inducement. According to the testimony at trial, Connors had no
contact with either Smith or Roberts outside of the meetings and on the night of the
robbery. The conversations at those meetings establish that Connors did nothing to
induce the defendants; all he did was provide them with an opportunity. Thus, as
the government notes, if anyone induced Smith or Roberts, it was someone other
than a government agent.
Connors also testified that at no time did either Smith or Roberts appear
unwilling to participate. The jury was free to judge the credibility of this
testimony. United States v. Parrado, 911 F.2d 1567, 1571 (11th Cir. 1990).
Connors’s statement that the robbery was a “guaranteed thing” does not
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qualify as inducement. Nothing in this language shows that Connors had to “push”
the plan on Smith or Roberts. Because Smith and Roberts failed to proffer
sufficient evidence of government inducement, the issue of entrapment was not
properly before the jury. Therefore, the district court did not abuse its discretion
by refusing to instruct the jury on entrapment.
B. Withdrawal from the Conspiracy
Withdrawal is an affirmative defense that the defendant has the burden to
prove. Westry, 524 F.3d at 1216. A defendant must prove “he undertook
affirmative steps, inconsistent with the objects of the conspiracy, to disavow or to
defeat the conspiratorial objectives, and either communicated those acts in a
manner reasonably calculated to reach his co-conspirators or disclosed the illegal
scheme to law enforcement authorities.” Westry, 524 F.3d at 1216 (citations
omitted). The defendant’s burden to establish the defense is substantial; “mere
cessation of activity in the conspiracy is not sufficient to establish withdrawal.” Id.
at 1217 (citations omitted).
Here, we conclude the district court properly denied the requested
instruction as the issue was not properly before the jury on the evidence presented
at trial. There was no evidence from which the jury could have concluded that
Roberts took affirmative steps to defeat the conspiracy and that he tried to
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communicate his withdrawal to the co-conspirators.
Roberts’s claim that he withdrew by remaining in the car is insufficient to
establish withdrawal. At most, his failure to enter the building shows cessation of
activity, as he could have been acting as a lookout, and the fact that he remained
behind did not communicate his withdrawal to the others involved. Therefore,
because there was no evidence to establish that Roberts acted in a way inconsistent
with the conspiracy’s objectives or that he communicated his withdrawal to his co-
conspirators, the issue of withdrawal was not properly before the jury.
IV. Conclusion
For the foregoing reasons, we conclude that the district court properly
denied the requested jury instructions. Accordingly, we AFFIRM the convictions.
AFFIRMED.
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