United States v. Gerald Michael ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4083
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GERALD EUGENE MICHAEL,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:10-cr-00379-CCE-1)
Submitted: December 21, 2012 Decided: January 11, 2013
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant. Ripley Rand, United States
Attorney, Randall S. Galyon, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM
Gerald Eugene Michael was convicted by a federal jury
of drug and firearm offenses, and — relevant to this appeal —
solicitation to commit murder, in violation of 18 U.S.C. § 373(2006), and conspiracy to kill another person with the intent to
prevent that person from attending and testifying in an official
district court proceeding, in violation of 18 U.S.C.
§ 1512(a)(1)(A) (2006). The district court sentenced Michael to
a total of 240 months’ imprisonment. On appeal, Michael seeks
to have his convictions for solicitation and conspiracy to kill
a witness vacated because the district court erred when it
refused to instruct the jury on entrapment. We affirm.
We review de novo a district court’s decision to deny
a defendant’s requested instruction on entrapment. United
States v. Ramos, 462 F.3d 329, 334 (4th Cir. 2006). “An
entrapment defense has two elements: (1) government inducement
of the crime and (2) the defendant’s lack of predisposition to
engage in the criminal conduct.” Id. Before giving an
entrapment instruction, the district court must make a threshold
determination “whether there is sufficient evidence for a
reasonable jury to determine that there was entrapment.” Id.We have held that “[e]ntrapment only arises in the context of
government inducement.” United States v. Hackley, 662 F.3d 671,
682 (4th Cir. 2011), cert. denied, 132 S. Ct. 1936 (2012).
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Michael “must produce more than a scintilla of evidence that the
government induced him to commit the charged offense.” United
States v. Daniel, 3 F.3d 775, 778 (4th Cir. 1993).
Here, it is clear that there was no Government
inducement because Tony Walser was not acting as a Government
agent at the time the solicitation and conspiracy to kill the
witness began. Walser became a Government agent on November 17,
2010, when he first contacted law enforcement officials. Our
review of the record leads us to conclude that Michael conspired
to kill the witness prior to November 17, 2010. Further,
Michael fails to produce sufficient evidence for a reasonable
jury to conclude that Walser’s actions, as a Government agent,
induced Michael to join the conspiracy. Therefore, we conclude
that the district court did not err in refusing to give an
entrapment instruction to the jury.
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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